# Downs v. Perstorp Components, Inc.

> District Court, E.D. Tennessee · December 27, 1999 · 126 F. Supp. 2d 1090

URL: https://www.frixlaw.com/law-library/cases/2504957

## Case

- **Full name:** Andrew A. DOWNS and Maria Downs, Plaintiffs, v. PERSTORP COMPONENTS, INC. and ICI Americas, Inc., Defendants
- **Court:** District Court, E.D. Tennessee
- **Decided:** December 27, 1999
- **Citations:** 126 F. Supp. 2d 1090; 1999 U.S. Dist. LEXIS 22567; 1999 WL 33232278
- **Precedential status:** Published
- **Opinion:** Opinion by Phillips
- **Judges:** Phillips
- **Cited by:** 11 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/2504957

## How later opinions describe it (automated extraction)

- discussing components of specific causation-qualitative toxicity, dose-response, temporality, confounders, and coherence-and noting that "[f]ailure to establish even one of these criteria ... is usually fatal to the proposition that exposure to a specific chemical caused a spe…

## Opinion text

MEMORANDUM AND ORDER
PHILLIPS, United States Magistrate Judge.
An order of reference was entered in this case on September 27, 1999, referring to the undersigned, for consideration and disposition pursuant to 28 U.S.C. § 636 (b) and the rules of this court, the motion in limine filed by defendants seeking to exclude the testimony of plaintiffs expert, Kaye H. Kilburn, M.D. [Doc. 36]. The parties were further ordered to appear before the undersigned for a Daubert
1
hearing on October 1, 1999 [Doc. 67]. Previously, defendant ICI Americas, Inc.’s motion for recovery of costs [Doc. 59] had been referred to the undersigned for appropriate disposition [Doc. 61]. A
Daubert
/evidentiary hearing was held on both of these motions on October 1, 1999, at which time testimony was presented by both plaintiff and this defendant.
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I.
STATEMENT OF FACTS
On October 11, 1995, Jayne Collyar of Perstorp Components gave dimensions of some freight to JoAnn Holland, an employee of SurfAir, Inc., that Ms. Collyar needed shipped to Perstorp’s factory on October 11, 1995. Ms. Collyar needed the freight because the trucker who was going to drive the freight to her had to be down for eight hours because he was out of drive time. The dimensions that Ms. Collyar gave Ms. Holland were wrong, thus making the size of the plane that was chartered by SurfAir to deliver the freight to be the wrong size.
Upon finding that the freight container would not fit on the plane, the Perstorp employee, Jayne Collyar, suggested that the freight be broken down into smaller containers so that a portion of the chemical could get to Perstorp’s factory. Ms. Holland spoke to the plaintiff, Andrew Downs, about the problem, and Ms. Holland and Mr. Downs decided that Mr. Downs would purchase containers from Wal-Mart in Jefferson City, Tennessee, and plaintiff would drive to the airport in Knoxville to transfer the product. Plaintiff was concerned about the safety of breaking the seal on the shipment and exposing himself to the chemical because there was a 1-800 number on the freight that he was supposed to call in case of a spill and he was concerned that the material might be classified as hazardous.
During a conversation with Jayne Coll-yar of Perstorp a short period after her conversation with Mr. Downs, Ms. Holland asked Ms. Collyar what the product was. Ms. Collyar related that the product was named Rubiflex, and Ms. Holland looked in her HazMat book but could not find the name Rubiflex cross-referenced in any way. She relayed this message to Mr. Downs, and he proceeded to transfer the product. Mr. Downs subsequently called Ms. Holland back and said that the transfer was not working. He was spilling more than he was getting into the containers, he had the chemical on him, and he was concerned. He wanted Ms. Holland to make sure it was safe and related to Ms. Holland that his skin was burning somewhat. Ms. Holland called Ms. Collyar once again and relayed Mr. Downs’ concerns to Ms. Collyar, and Ms. Collyar stated that Rubiflex would not hurt Mr. Downs. She stated that, “People come in contact with this everyday; they have had it on them from head to toe and it hasn’t bothered anyone.” Ms. Holland called plaintiff back and told him what Ms. Coll-yar had said. Mr. Downs related that he was going home to take a shower. Ms. Collyar canceled the charter that day, stating that she would transport it herself [Doc. 16, Affidavit of JoAnn Holland attached].
Plaintiff, Andrew Downs, was employed by Dodson International Air, an air charter company. Plaintiff was originally treated by Dr. William A. Paulsen, a neurologist, who did not find that plaintiff sustained a neurological injury. Plaintiff was then examined by Dr. Kaye H. Kil-burn, M.D., who diagnosed the plaintiff with “chemical encephalopathy which includes paresis (paralysis) of the right seventh cranial nerve and hyperesthesia face supplied by the fifth cranial nerve and visual field losses that are worse on the right. Also included is ptosis (eyelid droop) on the right. Body balance, reaction time and recall-short term memory was (sic) also impaired as measured by comparison to predicted values adjusted for his age, education, sex, height, and other factors.” Rule 26(a)(2) report of Kaye H. Kilburn, M.D., attached as “Exhibit A” to plaintiffs memorandum in support of its response to motion in limine to exclude testimony of plaintiffs expert, Kaye H. Kilburn, M.D. [Doc. 47].
Dr. Kilburn further states in his report dated July 28, 1998, that these signs of brain damage followed a single exposure to Rubiflex containing (DETA) diethyltoluene diamine, a polyurethane polymer system by contact and inhalation in October 1995. Imaging by D. James S. Lim, Dr. Kilburn
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states, showed no abnormality of the Circle of Willis and posterior fossa of the skull and brain area. Magnetic brain and neck scans on January 2,1996 showed no abnormalities. Spinal fluid examination was normal, and there was no history of other chemical exposures possibly competing to cause the impairment found. There was no history of pre-existing or spontaneous neurological disease or impairment. In summary, Dr. Kilburn states, in the process of differential diagnosis that he applied in Mr. Downs, no alternate factors nor additional considerations were found.
Dr. Kilburn concludes that patient Andrew A. Downs, who was well and healthy, had a single skin contact and inhalational exposure to Rubiflex in October 1995 that was followed in a logical sequence by injury consisting of severe facial pain, sensory abnormalities, visual field losses, impaired balance, slowed reaction time and recall-memory impairment. As other possible causes have been eliminated, Dr. Kilburn opined, it is concluded that the chemicals in the Rubiflex are responsible and Dr. Kilburn’s expert opinion was offered to the standard of more likely than not.
Dr. Kilburn is Ralph Edington Professor of Medicine at the University of Southern California School of Medicine, he is editor and chief of the Archives of Environmental Health and has published over two hundred scientific papers [Doc. 47, Exhibits A
&
D],
II.
POSITIONS OF THE PARTIES
A. Defendants’ Assertions
2
In their motion in limine, defendants have moved to exclude the testimony of Dr. Kilburn, asserting that Dr. Kilburn’s opinions do not satisfy the legal requirements set forth in
Dauberb v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), and asserting that he is not qualified to testify about ICI's product [Doc. 36], In its memorandum in support of their motion in limine, defendants point out that Dr. Kil-burn has been excluded from testifying in at least six other toxic tort cases, and his opinions have been rejected in a seventh.
Nelson v. Tennessee Gas Pipeline Company,
No. 95-1112, 1998 WL 1297690 (W.D.Tenn. August 31, 1998) (excluded);
Lofgren v. Motorola,
No. CV 93-05521, 1998 WL 299925 (Ariz.Sup.Ct. June 1, 1998) (excluded);
Goeb v. Tharaldson,
No. C3-92-602051 (St. Louis County, Minn. February 4, 1998) (excluded);
Valentine v. Pioneer Chlor Alkali, Inc.,
921 F.Supp. 666, 673-74 (D.Nev.1996) (excluded);
Home v. Pioneer Chlor Alkali Co., Inc.,
NO. CV-S-93-1060 HDM (D.Nev. March 4, 1996) (excluded);
Thomas v. FAG Bearings Corp., Inc.,
846 F.Supp. 1400 (W.D.Mo.1994) (excluded);
Georgine v. Amchem Products, Inc.,
157 F.R.D. 246 (E.D.Pa.1994) (rejected).
Dr. Kilburn’s testimony was excluded or rejected in these actions, defendants assert, because the courts determined that his methodology was unscientific. Defendants offer the following language taken from these decisions to illustrate this fact:
• “Dr. Kilburn’s deposition testimony and portions of his written work submitted by Tenneco suggest that he is a strong opponent of the use of chemicals. Expert opinions are about science, however, not advocacy. Based on the entire record in this case, Dr. Kilburn’s studies suffer from significant methodological flaws. Moreover, his opinions are completely unsupported by any scientific research outside the litigation context.... Dr. Kilburn’s opinions are based upon nothing more than conjecture, speculation, and litigation animus.”
Nelson ,
at 16.
• “Dr. Kilburn’s ‘revolutionary hypotheses’ appear to be supported by nothing
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more than supposition, hunches, and selective reliance on studies.” ... His “methodologies utilized in this case do not appear to be accepted by the medical or scientific community.” Dr. Kil-burn’s “conclusion appeared to be more litigation-driven than science oriented.”
Lofgren ,
at 32, 52-54.
• “Dr. Kilburn’s method is contrary to generally accepted scientific practice, is not generally accepted, and, in addition, is not scientifically reliable for purposes of determining such a cause and effect relationship. Dr. Kilburn’s proffered opinion here is based on speculation and conjecture by reason of the fact that he did not apply a generally accepted scientific method to determine whether exposure of the plaintiffs to Dursban and its components was capable of causing the injuries which are here claimed.”
Goeb,
at 4.
• “Dr. Kilburn’s study suffers from very serious flaws.... As a result, his conclusions ... cannot be said to be derived from acceptable scientific methodology.”
Valentine,
921 F.Supp. at 678 .
• “The significant problem with Dr. Kil-burn’s methodology is that ... it does not appear to provide a scientific basis for his conclusions regarding causation .... [I]t appears that Dr. Kil-burn’s testimony as to causation is based on little ‘more than subjective belief or unsupported speculation,’ which is not ‘scientific knowledge.’ ”
Home,
at 19 (quoting
Daubert,
509 U.S. at 590 , 113 S.Ct. 2786 ).
• In Georgine, Dr. Kilburn described a proposed class action settlement agreement as “lousy, reprehensible, and diabolically cunningly designed document to take the rights and privileges away from the asbestos-exposed workers of America.” The court rejected Dr. Kilburn’s testimony, finding that it was “a diatribe ... [that] appeared immoderate and contrary to the weight of the scientific evidence and therefore unpersuasive.”
Geor-gine,
157 F.R.D. at 271 .
Dr. Kilburn’s methodology and proffered opinions in this case suffer from the same fatal defects, defendants assert, because his methodology ignores generally accepted methods of toxicology, and offers instead predetermined conclusions based upon Dr. Kilburn’s subjective beliefs and unsupported speculation.
Defendants point out that plaintiff, as the party seeking to have Dr. Kilburn’s testimony admitted, has the burden of showing that Dr. Kilburn’s “findings are based on sound science, and this will require some objective, independent validation of the expert’s methodology.”
Smelser v. Norfolk Southern Railway Co.,
105 F.3d 299, 303 (6th Cir.1997),
cert. denied,
522 U.S. 817 , 118 S.Ct. 67 , 139 L.Ed.2d 29 (1997). Moreover, defendants assert, plaintiff cannot meet this burden with bald assurances of validity from Dr. Kilburn.
In many toxic tort cases, defendants point out, the central issue in dispute is whether a particular chemical substance caused the plaintiffs alleged injuries.
Cavado v. Star Enterprise,
892 F.Supp. 756, 757 (E.D.Va.1995),
affirmed in part, reversed in part on other grounds,
100 F.3d 1150 (4th Cir.1996),
cert. denied,
522 U.S. 1044 , 118 S.Ct. 684 , 139 L.Ed.2d 631 (1998). Toxicology is the relevant scientific discipline employed to determine whether a chemical substance is capable of causing and has caused adverse biological effects, defendants state, and classically it is known as the science of poisons. Federal Judicial Center, Reference Manual on Scientific Evidence (1994).
Defendants further point out that the generally accepted method for conducting a toxicological investigation consists of identifying the source, exposure, dose, and medical condition. The source of the chemical in issue must be identified, there must be an opportunity for physical contact with the chemical, and
*1095
the amount of the chemical to which the individual is exposed must actually penetrate a portal of entry. If exposure occurs and a dose is received, and if the dose is of sufficient magnitude, the effect may be beneficial, or it may cause a compatible medical condition such as a sign, symptom, abnormal laboratory finding, or diagnosed disease. Only if these four steps of a toxicological investigation are complete, defendants state, can the expert turn to the issue of causation. In most toxic exposure cases, two different but interrelated analyses must be performed, that is, a general causation analysis and a specific causation analysis. Numerous courts have recognized that both analyses must be performed in toxic tort cases, defendants assert, citing relevant authorities. To establish general causation, an expert either performs scientific tests on the chemical to see if it can cause the condition in animals or humans, analyzes the existing scientific literature to determine whether other scientists have performed these tests and what their results were, or does both. To establish specific causation, an expert must first complete the general causation analysis, and then must establish, at a minimum:
• Qualitative Toxicity. The chemical in issue is known to be capable of producing the alleged effect in humans. In some instances, animal data or other information may be applied to the analysis and the biologic plausibility of such extrapolation must be evaluated in this assessment. [This is essentially the results of the general causation analysis.]
• Dose-Response. The individual had contact with the chemical (exposure), and the amount of chemical absorbed into the body (dose) was of sufficient magnitude and duration to be capable of producing the alleged effect.
• Temporality. The chemical exposure must be related in time to the onset of the individual’s clinical condition, e.g., the effect did not precede the alleged exposure.
• Confounders. All other significant causes (including exposure to other substances, lifestyle, workplace, and genetic factors) of the individual’s clinical condition have been controlled for or ruled out. This is essentially the same procedure a physician performs when conducting a differential diagnosis.
• Coherence. All of the evidence is consistent with the conclusion of causation.
Failure to establish even one of these criteria for specific causation is usually fatal to the proposition that exposure to a specific chemical caused a specific medical condition, i.e., individual causation. In this case, defendants assert, plaintiff must show that Dr. Kilburn’s proffered opinions resulted from his correct application of generally accepted methods of toxicology. If Dr. Kilburn did not use generally accepted methods to form his opinions, if he failed to apply the methods appropriately, or, if his opinions widely diverge from those generally accepted in the field of toxicology, his opinions do not constitute scientific knowledge and are inadmissible under Rule 702, Federal Rules of Evidence.
Citing to Dr. Kilburn’s Rule 26 report (attached as Exhibit D to Doc. 45), defendants point out that Dr. Kilburn concluded that it is more likely than not that plaintiffs physical impairments were caused by a “single skin contact and inhalational exposure to Riboflex (sic) in October 1995.” When asked what process he went through to form his opinions in his Rule 26 report, he testified that he examined and elicited ■information from Andrew Downs concerning both how he felt, what he had been exposed to, what his medical neurological history was, and then put him through about five or six hours of testing of his neurobehavioral functions working with things which are in the list of studies and tests carried out on page 5 of his report of February 16, 1996. [Kilburn Depo. at 18, Doc. 45, Exhibit E], Noticeably absent
*1096
from Dr. Kilburn’s description of his “methodology”, defendants point out, is any inquiry about: (1) the chemical composition of Rubiflex; (2) whether plaintiff received a dose of Rubiflex; (3) whether the dose (if any) was sufficient to cause an effect in humans; (4) whether Rubiflex or any of its components was capable of causing the symptoms Downs reported; (5) whether Rubiflex or its components in fact caused Downs’ symptoms; or (6) whether Downs’ prior medical, educational or occupational records suggested alternative causes of his symptoms.
Defendants further assert that before forming his opinions in this case, Dr. Kil-burn did not review any of plaintiffs prior medical, educational or occupational records, reviewed at least one Material Safety Data Sheet (“MSDS”) concerning the composition of Rubiflex, and also received some MSDSs in April 1996. When asked in his deposition about the components of Rubiflex, and their corresponding MSDSs, Dr. Kilburn replied, “I haven’t tried going through these MSDSs to see how they line up.” And when asked if he thought that a curing agent in Rubiflex caused plaintiffs problems, Dr. Kilburn responded, “I don’t think there is any way to separate from the material that he handled to its components to make attribution of what caused his impairment, disability other than it was the exposure to the Rubiflex.” [Kilburn Depo. at 19-24; Doc. 45, Exhibit E].
Dr. Kilburn did review a questionnaire that plaintiff had completed about his symptoms and had plaintiff take several neuropsychological tests of his memory, recall, cognitive function, balance and vision. Dr. Kilburn also performed a physical examination of plaintiff which included pulmonary function tests [Kilburn Depo. at 18, 27, 35; Exhibit 45, Exhibit E].
Defendants assert further that nothing in Dr. Kilburn’s 1996 report indicates that he performed any search of the medical or scientific literature before forming his opinions, but sometime after he examined plaintiff, Dr. Kilburn searched the medical and scientific literature for references to Rubiflex but did not find any [Kilburn Depo. at 127; Doc. 45, Exhibit E], The only specific reference to the scientific literature in Dr. Kilburn’s Rule 26 report, defendants point out, relates to the pulmonary effects of isocyanates, primarily toluene diisocyanate (“TDI”), but Dr. Kilburn admitted that he is not aware of any evidence that Rubiflex contains TDI [Kilburn Depo. at 141-42; Doc. 45, Exhibit E], In fact, defendants state, it does not [Rule 26 report of James P. Lyon, Ph.D.; Doc. 45, Exhibit G]. When Dr. Kilburn was asked if he knew how much exposure to Rubiflex was necessary to cause plaintiffs injuries, he replied, “No, I don’t. He got enough. And that’s pharmacologically the principle. The dose is the amount that does the job.” [Kilburn Depo. at 159; Doc. 45, Exhibit E],
Based upon these facts, defendants state, Dr. Kilburn’s opinions do not comport with the Supreme Court’s standards set forth in
Daubert
because his opinions are not based upon good science or scientific knowledge. Rather, defendants assert, Dr. Kilburn’s opinions are merely based upon speculation and his advocacy for the plaintiff. Defendants assert that Dr. Kil-burn’s opinions can be tested, but he has not done so. His failure to test his theory leaves it as nothing more than a hypothesis, defendants assert, and even assuming that the examinations and tests administered by Dr. Kilburn revealed abnormal findings, Dr. Kilburn does not contend that they are capable of identifying the specific cause of the abnormalities. Defendants assert further that Dr. Kilburn’s opinions are not based on published, peer reviewed literature. Nowhere in Dr. Kilburn’s reports does he mention any articles or treatises to support his theory that a single exposure to Rubiflex can cause chronic neurological impairment. The only specific reference made by Dr. Kilburn to scientific literature in his Rule 26 report, defendants point out, related to the pulmonary effects of exposure to isocyanates, primarily TDI. Dr. Kilburn is not aware of any evidence that Rubiflex contains TDI, and
*1097
since the article cited by Dr. Kilburn in his report does not relate to Rubiflex or to the brain or central nervous system, Dr. Kil-burn cannot properly extrapolate the findings reported in that article to his hypothesis.
Relying upon the decision of the United States District Court for the Western District of Tennessee to support defendant’s assertion that Dr. Kilburn’s opinion should be rejected, defendants point to the language of the
Nelson
decision that, “[cjourts have found that extrapolation from studies of chemicals different from those at issue does not rise to the level of accepted methodology.”
Nelson ,
at 13
(citing Schudel v. General Electric Co.,
120 F.3d 991, 996-97 (9th Cir.1997)). The
Nelson
court also found, defendants point out, that “[ejxperts may not rely on studies that do not address the types of diseases at issue.”
Id.
at 14
(citing Christophersen v. Allied-Signal Corp.,
939 F.2d 1106, 1115-16 (5th Cir.1991),
abrogated on other grounds, Daubert; Valentine,
921 F.Supp. at 673-74 ).
See also, Allen v. Pennsylvania Engineering Corp.,
102 F.3d 194, 197 (5th Cir.1996) (studies suggesting that chemical exposure causes lymphatic and hematopoietic cancer not probative to cause of brain cancer);
Schmaltz v. Norfolk & Western Ry. Co.,
878 F.Supp. 1119, 1122 (N.D.Ill.1995) (rejecting studies about eye irritation in rabbits to pulmonary or respiratory conditions in humans).
Defendants further assert that Dr. Kil-burn’s opinions are not based on standards having a known or potential rate of error, asserting that there is no way to analyze Dr. Kilburn’s opinions or his methodology, because he does not use the methods and techniques of good science to form his opinions. Moreover, defendants assert, Dr. Kilburn’s opinions are not generally accepted.
Examining Dr. Kilburn’s opinions as they relate to causation, defendants point out that Dr. Kilburn cannot identify a single scientific test, study, experiment or authority of any type to support his opinions that a single exposure to Rubiflex can cause chronic neurologic impairment or that it did in this case. His opinions are not generally accepted by the toxicological community, and he has not produced any evidence that his opinions have been considered by anyone else in that community.
Moreover, defendants assert, Dr. Kil-burn’s temporal causation theory is based on a logical fallacy. Defendants assert that the core of Dr. Kilburn’s methodology can be found in his Rule 26 report and in two of his deposition answers. In his Rule 26 report, Dr. Kilburn related that plaintiff, who was well and healthy, had a single skin contact and inhalational exposure to Rubiflex in October 1995 that was followed in a logical sequence by injury. When asked in his deposition about the dose of Rubiflex necessary to cause plaintiffs injuries, Dr. Kilburn testified that, “he got enough.” When asked to identify the evidence to support his claim that Rubiflex is toxic, Dr. Kilburn testified that, “I have Andrew Downs.” [Kilburn Depo. at 158-59; Doc. 45, Exhibit Ej.
These statements, taken together, defendants assert, reveal that Dr. Kilburn’s methodology is a classic example of the logical fallacy of arguing from temporal sequence to a causal relation. As pointed out by the court for the Northern District of Illinois in
Schmaltz v. Norfolk & Western Ry. Co.,
878 F.Supp. 1119 at 1122 , “It is well settled that a causation opinion based solely on a temporal relationship is not derived from the scientific method and is therefore insufficient to satisfy the requirements of Fed.R.Evid. 702.”
See also, Conde v. Velsicol Chemical Corp.,
804 F.Supp. 972, 1023 (S.D.Ohio 1992),
aff'd,
24 F.3d 809 (6th Cir.1994);
Porter v. Whitehall Laboratories, Inc.,
9 F.3d 607, 611 (7th Cir.1993);
Cuevas v. E.I. DuPont De Nemours and Co.,
956 F.Supp. 1306, 1310-11 (S.D.Miss.1997);
Carttvright v. Home Depot U.S.A., Inc.,
936 F.Supp. 900, 906 (M.D.Fla.1996);
Cavallo v. Star Enterprise,
892 F.Supp. 756, 757 (E.D.Va.1995),
affirmed in part, reversed in part on other grounds,
100 F.3d 1150 (4th Cir.1996),
cert.
*1098
denied,
522 U.S. 1044 , 118 S.Ct. 684 , 139 L.Ed.2d 631 (1998).
Defendants assert further that Dr. Kil-burn does not identify the chemical substances that he claims caused plaintiffs injuries, he does not identify the dose plaintiff received from his exposure to Ru-biflex or the dose/response relationship for Rubiflex, and his opinions provide no assessment of general causation. As a matter of law and good science, defendants state, a toxicological inquiry must include an assessment of whether the chemical(s) in issue are capable of causing the effects in issue. Without this data, defendants reason, the toxicologist cannot establish a general causation as required by law and generally accepted methods of toxicology.
If general causation cannot be determined, defendants point out, specific causation cannot be determined either. Dr. Kilburn had no experience with Rubiflex prior to seeing plaintiff, and he cannot rely upon his experience to support his proposition that a single exposure to Rubiflex can cause chronic neurological impairment, and Dr. Kilburn has not located any support for his proposition in the relevant scientific and medical literature [Kilburn Depo. at 127, 138; Doc. 45, Exhibit E], Dr. Kilburn testified in his deposition that Rubiflex is an “epoxy-type product,” but defendants point out that Dr. Kilburn’s experience with epoxy exposure is limited to five other patients he has seen [Kilburn Depo. at 127; Doc. 45, Exhibit E]. Even assuming that Dr. Kilburn could properly use information about the health effects of epoxy to draw conclusions about the effects of Rubiflex, defendants point out that Dr. Kilburn’s attempt to use a few case studies of epoxy to prove that Rubiflex can cause neurological impairments is a classic example of another logical fallacy — the Converse accident (hasty generalization).
O’Conner v. Commonwealth Edison Co.,
807 F.Supp. 1376, 1391 (C.D.Ill.1992). The fallacy of Converse accident occurs when a person erroneously creates a general rule from observing too few cases.
Id.
at 1395 .
Pointing to the opinion of the Ninth Circuit Court of Appeals in
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
43 F.3d 1311, 1317 (9th Cir.1995)
(‘Daubert
II”), defendants quote from the opinion of the Ninth Circuit on remand: “One very significant fact to be considered is whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.” Defendants admit that Dr. Kilburn began researching the general topic of chemical brain injury before he saw plaintiff in February of 1996, but further assert that much of Dr. Kil-burn’s research has been litigation driven and funded by monies received from plaintiffs and law firms that represent plaintiffs. In fact, defendants point out, Dr. Kilburn devotes an entire chapter of his book
Chemical Brain Injury
to “Legal Proceedings.” Kaye H. Kilburn,
Chemical Brain Injury,
pp. 352-63 (1998). Defendants further observe that other courts that have excluded Dr. Kilburn’s opinions have noted that his opinions did not grow naturally and directly out of prelitigation research.
Nelson ,
at 15-16;
Lofgren ,
at 54;
Valentine,
921 F.Supp. at 670 .
Last of all, defendants assert that Dr. Kilburn is not qualified to give an opinion about Rubiflex. Defendants assert that although Dr. Kilburn has a lengthy resume, his education, training and experience do not provide him with the requisite qualifications to testify about Rubiflex or its alleged effects on the human brain. In assessing Dr. Kilburn’s qualifications to testify in this case, this court must determine “whether those qualifications provide a foundation for a witness to answer a specific question.”
Smelser,
105 F.3d at 305
(quoting Berry v. City of Detroit,
25 F.3d 1342, 1351 (6th Cir.1994)).
The specific question before this court is whether a single exposure to Rubiflex can cause chronic neurologic impairment. Defendants conclude that Dr. Kilburn is not
*1099
qualified to answer this question because: (1) he did not have any experience with Rubiflex prior to examining Downs; (2) he does not know what levels of exposure to Rubiflex are dangerous to humans; and (3) he cannot refer to any support in the medical or scientific literature for his testimony about Rubiflex. For similar reasons, defendants state, the trial court in
Mancuso
found that the plaintiffs expert did not possess the “requisite qualifications to testify that plaintiffs ailments were caused by exposure to PCBs, even under the lenient standards of Rule 702.”
Mancuso,
967 F.Supp. at 1443-^45. Therefore, defendants state, considering all of the flaws and fallacies of Dr. Kilburn’s opinions and methodology, Dr. Kilburn’s opinions are about speculation and advocacy, not science. Under
Daubert,
therefore, Dr. Kilburn’s testimony that Rubiflex caused plaintiffs alleged injuries must be excluded [Doc. 45].
B. Plaintiff’s Response
Plaintiffs have responded in opposition to defendants’ motion in limine to exclude the testimony of plaintiffs’ expert witness, Kaye H. Kilburn, M.D. Plaintiffs assert that Dr. Kilburris testimony and opinions satisfy the legal requirements of Rule 702, Federal Rules of Evidence as defined in
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993) [Doc. 46]. In their brief in support of their motion, plaintiffs point out that the standards enunciated by the United States Supreme Court in
Dau-bert
are not “a definitive checklist or test” but are merely “some general observations.” The Ninth Circuit has interpreted them as “illustrative rather than exhaustive; similarly, we do not deem each of them to be equally applicable (or applicable at all) in every case,” plaintiffs observe.
Daubert II,
43 F.3d at 1317 . Instead, plaintiffs suggest, the Rule 702 inquiry is a flexible one and the factors listed by the Supreme Court in
Daubert
may be inapplicable to proffered expert testimony while other, non-enumerated factors may well assist the trial judge in determining the reliability and/or relevance of the proffered testimony. Dr. Kilburn s opinions and testimony must be evaluated under this flexible standard, plaintiffs assert, and in doing so the court “should not rush to judgment where new scientific theories are proposed that lack adequate support or reputation because they are so new.” Plaintiffs quote Thomas S. Kuhn in his treatise, “The Structure of Scientific Revolution” 52 (2d ed.1970):
New and unsuspected phenomenon are ... repeatedly uncovered by scientific research, and radical new theories have again and again been invented by scientists. History even suggests that the scientific enterprise has developed a uniquely powerful technique for producing surprises of this sort.
In re: Breast Implant Cases,
942 F.Supp. 958, 960 (E.D.N.Y.1996).
Plaintiffs initially point out that defendants do not challenge Dr. Kilburn’s qualifications, but only his opinions and proposed testimony. In medically evaluating plaintiff, plaintiffs state, Dr. Kilburn performed a Clinical, Neuropsychological Battery, which is a series of tests designed to enable a doctor to reach certain conclusions about a patient. It is based on the Wechsler and Halstead-Reitan tests, and these tests include a Picture Completion and Similarities Test, Verbal Story Recall Test, Visual Design Reproduction Immediate and Delayed Verbal Recall Tests, Digital Span Test, Digital Symbol and Symbol Recall Tests, Fingertip Number Writing Perception Test, Rey 15 Form Test, Culture Fair Test, Vocabulary Test, and other visual and audio measurement tests [Kil-bum Depo. at 4-5, Doc. 47, Exhibit B],
Plaintiffs stipulate that Dr. Kilburn has used these tests in determining the effects of chemicals on brain functions.
See
Kaye H. Kilburn, et al,
Polluticm-Based Prediction Equations for Neurobehavioral Tests,
Arch.Envir. Health 53:257, 260 (1998); Kaye Kilburn,
Exposure to Reduced Sulfur Gases Impairs Neurobehavioral Function,
So.Med.J. 90:997, 998-99 (1997); and Kaye H. Kilburn, et al.,
Balance measured
*1100
by head (and trunk) tracking and a force platform in chemically (PCB and TCE) exposed and referent subjects,
Occup. & Envir.Med. 51:381, 382 (1994) (sway test and questionnaire for toxicological history) [Doc. 47, Exhibits C-l to C-3]. These techniques have been developed and refined during fifteen years of testing and research, plaintiffs state, culminating in the publication of Dr. Kilburn’s book on the effects of chemicals on the brain.
See
Kaye H. Kilburn,
Chemical Brain Injury
(1998). Plaintiffs have attached a list of neurobehavioral toxicology papers published by Dr. Kilburn to their response, and state that these papers have been subjected to peer review. Thus, plaintiffs state, Dr. Kilburn’s opinions that chemical exposure can affect brain function and cause brain damage have been subjected to peer review and are as scientific as any in clinical medicine, using time tested methods of examination, evaluation, and differential diagnosis [Doc. 47, Exhibits D & E].
In addition to these tests, plaintiffs state, Dr. Kilburn reviewed medical records from Dr. Thomas J. Callendar, Dr. Herbert H. Schaumburg, Dr. Fulk, and Dr. William Paulsen. He also reviewed the material safety data sheets (“MSDS”) for Rubiflex and Ethacure 100, which contain the same DETA as Rubiflex [Kilburn Depo. at 22; Rule 26(a)(2) Report of David J. Crouse; Doc. 47, Exhibits B & F].
Plaintiffs assert that the materials reviewed by Dr. Kilburn and the tests performed by him in this case are similar to those approved as providing a proper basis for expert testimony in
McCullock v. H.B. Fuller Co.,
61 F.3d 1038, 1043 (2nd Cir.1995) (reviews of various safety and educational sources, review of MSDS, interviews with the plaintiff, background of the industry, and practical experience). The test results and the review of other medical records caused Dr. Kilburn to reach certain conclusions. The plaintiffs score on the toxic exposure questionnaire is elevated above the average for a non-exposed population, plaintiff has suffered verbal and visual impairment and abnormal scores on the Verbal Story, Visual Design Delayed, and Vocabulary Score Tests. Moreover, plaintiff has been affected in the areas of intelligence, recall, emotion, vision, and balance, and the abnormality in the color test is more probably than not attributable to his exposure to Rubiflex [Kilburn Depo. at 28, 58, 79, 85, & 124; Doc. 47, Exhibit B],
Plaintiffs further assert that the findings of Dr. Schaumburg, one of defendant’s expert witnesses, found plaintiff to suffer from brow ptosis, atypical face pain, and astasia-abastia gait disorder, essentially the same impressions reached by Dr. Kilburn as to his physical findings [Rule 26(a)(2) Report of Dr. Herbert H. Schaumburg, Kilburn Depo. at 101-02; Doc. 47, Exhibits B
&
G]. Plaintiffs further assert that the toxins in Rubiflex were absorbed through direct skin and eye contact as well as inhalation and although it cannot be determined whether direct contact or inhalation is the more significant exposure factor, Dr. Kilburn noted that organic chemicals such as Rubiflex are generally absorbed through skin layers [Kilburn Depo. at 94, 117-18; Doc. 47, Exhibit B],
Plaintiffs further assert that Dr. Kilburn has personally examined twenty-two to twenty-three patients with single acute chemical exposure which resulted in brain damage and each had a progressive loss of function similar to that experienced by plaintiff. Of these patients, six had exposure to epoxy-based chemicals and, plaintiffs assert, Rubiflex is an epoxy. The chemical components of Rubiflex would adversely affect the brain either as a solvent or as an epoxy, plaintiffs contend [Kilburn Depo. at 99, 121, 127 & 138; Doe. 47, Exhibit B].
Plaintiffs further assert that Rubiflex contains two components known to be toxic. Rubiflex is an epoxy containing DETA which is very toxic, plaintiffs assert, and based on the amount of DETA in Rubiflex, that product should be classified as “very toxic.” As a known toxin, plaintiffs contend, DETA plays a major role in the
*1101
toxicity of Rubiflex and Rubiflex also contains formic acid, another known toxin. Because Rubiflex contains two well known toxins, Dr. Kilburn concluded that Rubi-flex is toxic to the human body [Kilburn Depo. at 99,124-26,
&
158, Doc. 47, Exhibits B, F & H]. Plaintiffs assert further that Dr. Kilburn conducted differential diagnosis to determine if other causes contributed to the plaintiffs maladies, but concluded that none played a factor. He found no evidence of other chemical exposures and no history of pre-existing or spontaneous neurological disease, and his extensive testing indicated no alternate factors. It is not believed that allergies played a role, plaintiffs state, and the likelihood that plaintiff would have a spontaneous neurological incident that coincides in time with, yet is independent of, the chemical incident is essentially nonexistent. This suggests that the plaintiffs symptoms are either real or invented, plaintiffs state, and even Dr. Schaumburg reached the same medical findings as Dr. Kilburn. Plaintiffs assert further that defendants do not seriously contend that plaintiff is not damaged in some manner. Rather, defendants primary area of challenge is causation and Dr. Kilburn extensively searched for other causes, but the plaintiffs history revealed none. Thus, plaintiffs conclude, his exclusion of other causes mitigates in favor of admission of his testimony.
See Hein v. Merck & Co., Inc.,
868 F.Supp. at 231.
Finally, plaintiffs assert, Dr. Kilburn was unable to state whether goggles, gloves, or other protective gear would have made a difference [Kilburn Depo. at 184; Doc. 47, Exhibit B], The material safety data sheet on Rubiflex advises of the potential eye and skin irritation from exposure and/or contact with Rubiflex and further advises that users of Rubiflex wear “impervious gloves and apron,” chemical goggles, and, if necessary, a full face shield [Doc. 47, Exhibit H], Plaintiffs further assert that other documents used by defendant ICI Americas, Inc., regarding Rubi-flex specifically advise that the chemical may cause cancer and further advise that handlers wear the same safety equipment recommended by the MSDS [Doc. 47, Exhibit I],
Plaintiffs acknowledge the criticism leveled at Dr. Kilburn’s methodology by the report of Dr. Phillip S. Guzelian who has not examined the plaintiff, has not reviewed any materials to enable him to offer a causation explanation, and is unable to provide one. His report is apparently offered solely to attack Dr. Kilburn’s opinions, plaintiffs assert, and state his role in this litigation as follows:
I have been asked to evaluate the plaintiffs claim of injuries in the context of feasible exposure levels of the chemicals in the materials at the airport facility. To do that, I have considered whether the evidence and opinions adduced by Dr. Kilburn, testifying on behalf of the plaintiff adhere strictly to the scientific method Tor establishing that a cause and effect relationship exists between a chemical exposure and the presence of a medical condition in a specific plaintiff, and thus, satisfy the guidelines of the recent Supreme Court’s
Daubert
decision for determining the admissibility of expert evidence. In my opinion, they do not.
[Doc. 45, Exhibit C]. Thus, plaintiffs contend, Dr. Guzelian has been retained to reach a legal conclusion, which suggests an opinion reached solely for the purpose of litigation. His legal qualifications for reaching this conclusion are not mentioned, and this is a conclusion for the district court to reach. In any event, plaintiffs state, Dr. Guzelian’s criticism is more properly directed toward the weight to be given to Dr. Kilburn’s opinions, not their admissibility. “Who is ‘best’ qualified is a matter of weight upon which reasonable jurors may disagree.”
Hol-brook v. Lykes Brothers Steamship Co., Inc.,
80 F.3d 777, 783 (3rd Cir.1996).
The basic question in a
Daubert
analysis is whether the expert’s proffered testimony is the result of good scientific procedure, plaintiffs assert, and Dr. Kilburn clearly satisfies that standard. Dr. Kil-
*1102
burn conducted extensive and widely used tests on the plaintiff to determine his medical condition, he examined plaintiffs medical history to determine whether causes other than the Rubiflex exposure could have contributed to these symptoms, and he examined the contents of Rubiflex and discovered that it contains at least two toxins known to affect the brain and to cause other neurological damage. Plaintiff is not unique in being a single exposure case, plaintiffs state, as Dr. Kilburn has personally examined twenty-three similarly situated patients. Further, single exposure cases are a recognized problem and Dr. Kilburn has compared his findings with the plaintiff to those of control groups in other studies, and the findings there support his conclusions. Thus, plaintiffs state, Dr. Kilburn’s opinions are not frantic speculation by a chemically adverse person, but instead are the most plausible explanation based on the results of testing, studies, differential diagnosis, and careful comparison. Simply stated, plaintiffs state, the issues in this case are whether the plaintiff was damaged and, if so, whether the damage is attributable to his exposure to the defendants’ chemicals. There seems to be little doubt as to the damage itself, as both Dr. Kilburn and Dr. Schaumburg reached the same medical condition findings using methods used for decades by neurologists and other medical specialists for determining impairment. The difference of opinion is causation, plaintiffs state, and Dr. Kilburn went further to attempt to exclude other causes and successfully did so. Thus, his opinions that the plaintiffs condition is caused by his exposure to known toxins and the defendants’ chemicals is based, plaintiffs assert, on sound science and passes
Dau-bert’s
criteria for admissibility.
In conclusion, plaintiffs state that the Federal Rules of Evidence embody a strong and undeniable preference for admitting any evidence having some potential for assisting the trier of fact. Rule 702, which governs the admissibility of expert testimony, specifically embraces this policy and has a liberal policy of admissibility.
Holbrook v. Lykes Brothers Steamship Co., Inc.,
80 F.3d at 780 (citations and internal quotes omitted). To be admissible, Rule 702 requires only that the proffered expert testimony assist the jury, not that it prove a certainty, and Dr. Kilburn’s opinions satisfy this requirement. The weight to be given his testimony, however, is for the jury [Doc. 47],
C. Defendants’ Reply
Defendants have filed a reply memorandum supporting their motion in limine, arguing, first of all, that plaintiff has misrepresented Dr. Schaumburg’s opinions. Dr. Herbert H. Schaumburg, ICI’s expert on neurotoxicology, did not agree with the findings made by Dr. Kilburn. According to Dr. William Paulsen, “Dr. Schaumburg is considered to be the best known expert on neurotoxicology in the United States. He enjoys a superb and probably worldwide reputation.” [Paulsen Depo. at 25, Doc. 49, Exhibit A], Dr. Schaumburg has not only authored numerous peer-reviewed articles on neurology and neurotoxicology, he is the co-editor of the first comprehensive textbook on neurotoxicology, and has also authored a textbook on disorders of the peripheral nerve. Far from agreeing with Dr. Kilburn, defendants assert, Dr. Schaumburg clearly stated in his Rule 26 report:
1. Based upon my neurological examination of Andrew Downs, I can find no evidence of a neurological impairment that may be attributable to the reported chemical exposure of 1995.
2. Given the nature of Mr. Downs’ complaints, my neurological examination of him and the findings of Dr. Steven Herskovitz, Thomas Slomow-itz, William Paulsen, and David Mas-ur, the most probable explanation for his complaints is his desire for secondary gain from the lawsuit he initiated.
Not only does Dr. Schaumburg disagree with Dr. Kilburn’s opinions about plaintiff and his alleged injuries, defendants state, Dr. Schaumburg expressed specific criti
*1103
cisms of Dr. Kilburn’s qualifications, medical conclusions, and testing of the plaintiff. For example, defendants point out, based upon Dr. Kilburn’s deposition testimony concerning his training and experience, Dr. Schaumburg concludes that Dr. Kilburn is not qualified to give neurological diagnosis about the plaintiff and that several of Dr. Kilburn’s opinions are not generally accepted in the field of toxicology and are contrary to fundamental principles of neurology, neurotoxicology and toxicology [Doc. 49, Exhibit B],
Defendants further assert that plaintiff has not met his burden under
Daubert
for the reasons previously enumerated by defendants, and further point out that Dr. Kilburn’s testimony was recently excluded in yet another toxic tort case. In that decision,
Bautista v. Christian Salvensen, Inc.,
No. 761489 (Sup.Ct.Calif., September 23, 1998), the court excluded Dr. Kilburn’s testimony, holding:
I cannot accept and do not accept, based under the cases, that without a reasonable investigation of prior medical history and other causal explanations, that anybody could testify that exposure to anhydrous ammonia was a reasonably medical, probable cause of the symptoms that were suffered.
So, to me, it is like making an opinion with less than half a deck. I really am concerned that we even attempt to offer this kind of “psuedo-scientific clap-trap.”
Bautista,
at 9-10 [Doc. 49, Exhibit C].
Defendants further assert that the decision of the Second Circuit Court of Appeals in
McCulloch v. H.B. Fuller Co.,
61 F.3d 1038 (2nd Cir.1995) is inapplicable to the case at bar. Performing a valid differential diagnosis by necessity requires the same type of analysis performed by toxicologists, defendants argue, and the threshold objective is to identify all of the known possible causes of the specific condition in question. The causes must be ruled in before they are ruled out, and ruling in a toxicological cause requires credible scientific evidence that a particular chemical can cause the condition. To establish this, someone in the scientific community has to perform valid tests using the generally accepted methodology described in Dr. Guzelian’s affidavit, because without credible scientific evidence that a condition can be caused by a particular chemical, attributing the condition to exposure to the chemical solely on the basis that the exposure preceded the condition is not science, but speculation. Defendants assert further that Dr. Kilburn’s methodology for arriving at his differential diagnosis is invalid because Dr. Kilburn is not plaintiffs treating physician, did not review his medical records or conduct a meaningful investigation into plaintiffs physical condition prior to exposure to Ru-biflex, did not perform or review any pathological studies, did not review all of the pertinent MSDSs before forming his opinion, and did not cite to any scientific or medical treatises to support his opinion that a single, brief exposure to Rubiflex or its components can cause permanent, progressive damage to the central nervous system. In fact, defendants assert, there is no evidence that Dr. Kilburn even conducted a search of the scientific and medical literature until after forming his opinion. As stated by the Ninth Circuit Court of Appeals in
Claar v. Burlington Northern R. Co.,
29 F.3d 499, 503 (9th Cir.1994), “Coming to a firm conclusion first and then doing research to support it is the antithesis of this [the scientific] method.”
Defendants further assert that Dr. Kil-burris opinion is unreliable because it is based upon unreliable information about plaintiff, pointing out that Dr. Kilburn relies entirely upon plaintiff for information about his medical history, the facts and circumstances surrounding his exposure, and the development of his alleged symptoms. Thus, defendants assert, Dr. Kil-burn’s differential diagnosis is only as reliable as the information plaintiff provided to him. A differential diagnosis based upon inaccuracies and misplaced assumptions is not good medicine or good science. Defendants point out that Dr. Kilburn’s toxic exposure questionnaire included a
*1104
question about prior trauma to the head which plaintiff did not answer. Had Dr. Kilburn reviewed plaintiffs medical records, defendants state, he would have discovered that plaintiff sustained concussions on two occasions prior to the exposure. Plaintiff admitted in his deposition that he sustained a concussion while playing high school football in September 1986, and although plaintiff denied sustaining any other head injuries, his. medical records reveal that he sustained another concussion in a motor vehicle accident in December 1987 [Downs Depo. at 225, Doc. 49, Exhibit D],
In conclusion, defendants state that Dr. Kilburn is not a psychologist, neurologist, or toxicologist and he has little or no formal training in those fields. He has created a cottage industry out of giving neu-rotoxieological examinations, however, primarily to plaintiffs in toxic tort cases. Dr. Kilburn’s self-proclaimed revolutionary beliefs about the adverse effects chemicals allegedly have on the brain and central nervous system are not generally accepted and are not supported by any credible scientific evidence, defendants argue, and this is precisely the type of junk science
Daubert
was designed to eliminate from the courtrooms of this country. Accordingly, defendants conclude, Dr. Kilburn should not be permitted to give testimony in this case [Doc. 49].
III.
PLAINTIFFS’ EXPERT WITNESS
Defendant has moved to exclude the testimony of plaintiffs expert, Dr. Kaye H. Kilburn, asserting that Dr. Kilburn’s opinions do not satisfy the legal requirements set forth in
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 , 118 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), and he is not qualified to testify about ICI’s product.
3
The qualifications, experience, and opinions of Dr. Kilburn are set forth below.
Dr. Kaye H. Kilburn is a medical doctor who graduated from the Utah College of Medicine and initially interned in surgery and completed a medical residency in internal medicine at Duke University in 1957/1958. He served two years in the U.S. Army Medical Corps, running a laboratory for cardio-pulmonary physiology at Fitzsimmons General Hospital, spent a year in cardiology in London, and became board eligible in cardiology. He served on the medical faculty at the University of Colorado, then at Washington University in St. Louis, and then served as an associate professor of medicine at Duke University and chief of medical services at the Veterans Administration Center at Durham. He organized the first department of environmental medicine at Duke University.
Dr. Kilburn participated with the National Institute of Occupational Safety and Health in solving the problem of airborne toxicity leading to the lung disease Byssi-nosis, which is a similar disease to chronic bronchitis, but is induced by the widespread distribution of cotton dust in textile mills. Dr. Kilburn founded a new division of pulmonary environmental and critical care medicine at the University of Missouri and then went to Mt. Sinai Medical School in New York to head the research department of the Center for Environmental Medicine and worked in the laboratory that studied PCB toxicity identification, asbestos toxicity, and studies on the neuro-behavioral effects of chemicals.
In 1980, Dr. Kilburn became the Ralph Edington Professor at the University of Southern California. Dr. Kilburn has published approximately 236 professional papers dealing with toxicity of various materials, the last 36 or 38 of which dealt with nervous system responses to chemical agents. Dr. Kilburn has also written a book entitled,
Chemical Brain Injury,
which was published by John Wiley &
*1105
Sons in New York, New York. Dr. Kilburn also has under consideration at University of Indiana Press a book entitled,
Foul and, Mischievous Air,
and a third book entitled,
Twentieth Century Plagues,
that is under consideration by a publisher in New York. All of Dr. Kilburn’s books deal with his research and experience in the field of chemicals and their effect upon the human body. Dr. Kilburn currently serves as editor in chief of one scientific journal and serves on the editorial boards of three others. Dr. Kilburn is board certified in Internal Medicine and in Preventive Medicine and Occupational Health. Dr. Kil-burn’s latest book was reviewed by Dr. Alan Hirsch, who is board certified in neurology and psychiatry.
4
Dr. Kilburn testified at the
Daubert
hearing held in this case that he has developed a method of testing and examining individuals who have been exposed to various chemicals. He related that he conducts what has traditionally been called neuropsychological testing which aims at testing mental functions like problem solving, memory, both recall memory, immediate recall and delayed recall, and that he uses standard methods that were developed by Dr. David Wechsler. He also uses other tests from the Halstead Battery developed at the University of Chicago by a psychologist working with neurologists and neurosurgeons. Dr. Kilburn adopted from the Wechsler and the Halstead Batteries the tests that are designed to discriminate between people exposed to chemicals and the general population.
Dr. Kilburn related that the tests that he described in his book were similar to tests that he used in treating and diagnosing the plaintiff in this ease, Andrew A. Downs. Dr. Kilburn related that the methods he uses differ from traditional tests or modalities in the neurological field mostly by extending the tests to get numbers instead of impressions. Dr. Kilburn related that he has objectified the tests and made the calculus one of comparing numbers and has further increased the sensitivity of many of the tests from other disciplines, for example, ophthalmology.
Dr. Kilburn testified that, based upon his studies and the use of tests developed by other individuals, his method and his studies were considerably more accurate than those traditionally used and pointed out that his writings concerning his testing and tests had been reviewed independently and adopted by others.
Dr. Kilburn further testified that he examined the plaintiff, Andrew A. Downs, in February 1996. Mr. Downs presented himself to Dr. Kilburn seeking to determine if his impairments were real or imagined and Dr. Kilburn found Mr. Downs to be a 25-year old young man with some fairly advanced kinds of impairments that do not ordinarily occur in 25-year olds. Dr. Kilburn tested Mr. Downs for balance using the quantitative Romberg test and compared his findings to tests administered to normal people and found that plaintiff was outside of the range for normal individuals. Dr. Kilburn further tested plaintiffs reaction time and found that he had an abnormal choice reaction time. The tests administered by Dr. Kilburn demonstrated that plaintiffs processing is slowed, that is, his judgmental processing of information. That processing takes place in the brain, probably between the parietal and frontal lobes of the brain.
The tests administered by Dr. Kilburn are all intended to sample the central nervous system. Dr. Kilburn also administered a blink reflex test to see how fast the eye gets ready to close. Dr. Schaumburg found that plaintiff had a blink rate of 12.6 for his right eye and 13.6 for his left eye, both of which were within normal limits. Dr. Kilburn further tested plaintiffs hearing by audiometry and found that his hearing was very slightly decreased, within normal limits, in both ears. He then administered a color vision test, called Color Confusion Index, and found plaintiff had
*1106
only slight abnormalities, nothing that would put him across one and a half deviations from expected. Dr. Kilburn further conducted testing of plaintiffs visual fields and found that plaintiff had major defects on both eyes. The tests revealed reduction in the upper fields of both eyes and an enlarged blind spot on the right eye. Dr. Kilburn completed the vision test by doing contrast sensitivity, which appraises overall vision rather than looking for defects in the vision fields.
The next test administered by Dr. Kil-burn was to measure grip strength' and found that his grip strength for both right and left arms was normal.
Dr. Kilburn then administered a series of psychological tests, seeking to test the plaintiffs long-term memory, which he found to be good. He also tested plaintiffs recall of stories, and found that plaintiff had very poor recall memory. Dr. Kilburn testified that plaintiffs old memory is fine, but in attempting to keep track of new information, plaintiff loses about 80% of it. The norm is 55% retention, and 45% loss, so plaintiffs loss is much greater than normal.
Dr. Kilburn also administered other memory tests for visual design, and plaintiffs immediate response was about 75%, but he lost half of that in 30 minutes. Plaintiff does better with things he sees than he does with things he hears, but with things he sees he has a high loss within 30 minutes, which is unacceptable and a serious loss. Dr. Kilburn also administered a digit span forward and backward, and on that test plaintiff did fine, and also did well on flash memory. But if you extend the flash memory to two or three minutes, plaintiff has a serious impairment shown by the loss of verbal memory. Dr. Kilburn then administered three tests for competency to do visual and manipulative tasks and did another test for cognitive function, on which he did superbly. Another test Dr. Kilburn administered is a malingering check, on which plaintiff received a perfect score, indicating that there was no evidence of malingering.
Dr. Kilburn further administered a questionnaire called a Profile of Mood States and found that plaintiffs degree of upset was very elevated on February 13, 1996.
Dr. Kilburn further testified that the tests he administered are verifiable and reproducible and have been subjected to peer-review. The tests he administered are widely accepted and used in the relevant scientific community, the tests do not rely on subjective analysis, and incorporate a very conservative expression for abnormality.
Dr. Kilburn testified further that an important piece of information he obtained from the plaintiff was whether he had any pre-existing impairments and his medical history. From his performance on the tests administered that are resistant to chemicals, the absence of contributing factors, Dr. Kilburn related that there was nothing that could explain plaintiffs impairment except whatever he was exposed to. Dr. Kilburn ■ related that he obtained information from plaintiffs wife as to his condition prior to his exposure, and found that plaintiff had left school in the eleventh grade to go to work. He determined that plaintiff had a masterful level of intelligence prior to his exposure and found no evidence that he had any kind of impairment of his facial movement or of his face prior to his exposure, and he noted in plaintiffs medical history that Dr. Lim did imaging of plaintiffs brain and skull, magnetic resonance of his brain and neck pattern, showing no abnormality and that the spinal fluid was normal. There was no evidence then or now of any pre-existing or spontaneous neurological disease that could have gotten worse coincident with the exposure, Dr. Kilburn related, and he concluded that exposure to chemicals was the cause of his impairment. He obtained a history of plaintiffs exposure to the chemical and found that plaintiff had been splashed by the chemical on the right side of his body and face.
*1107
This medical history was consistent with Dr. Kilburn’s findings, he testified, but he was not acquainted with the particular chemicals within the chemical mix to which plaintiff was exposed. He got information about them later, which Dr. Kilburn stated that he found cleaner and clearer in order that he would not build preconceived notions before he tests a patient which might influence his findings adversely or unposi-tively. He then looked for the association that would be plausible and logical and ruled out those that were less logical and less plausible, coming down to a single exposure, brief as it was, which was direct by contact and inhalation and made a reasonable conclusion of cause and effect. Dr. Kilburn concluded that the exposure to the chemical caused the result that he observed, and related that his conclusion was within a reasonable degree of medical and scientific certainty.
At a later time, Dr. Kilburn did get more information on the substance plaintiff was exposed to which supported his conclusions. Dr. Kilburn related that chemicals such as epoxy or polyurethane are extremely toxic, like the diisocyanates as a group and some of the accelerators and polymer systems, like Rubiflex, DETA, for example, the diethyltoluene diamine. Dr. Kilburn testified, however, that through his expert knowledge, testing, the modalities he used, the histories he obtained, he had not been able to draw a conclusion within a reasonable degree of medical scientific certainty as to what in the Rubiflex may have caused the injury received by plaintiff. On the other hand, he was able to draw a conclusion within a reasonable degree of medical scientific certainty that the Rubiflex or something contained therein caused plaintiffs injuries. “I think it has to be that the Rubiflex in that container, whatever its alternations may have been, did the toxic injury, but I am unable from information available to me or that I have been able to try to assemble from other sources, even put these things in anything more than a, you know, an array of possibilities that I have explained that would multiply.”
Dr. Kilburn testified that, from his experience, injuries such as that afflicting the plaintiff, tended to be permanent, and he could say that with a 90% certainty. He had seen some individuals who had some degree of recovery, but a full recovery he had never seen. In addition, there is no therapy to improve plaintiffs injuries. Dr. Kilburn advised plaintiff to avoid further exposure to chemicals because he had demonstrated a degree of sensitivity that may be ordinary or may be different from ordinary.
On cross-examination by counsel for defendant ICI Americas, Inc., Dr. Kilburn admitted that Dr. Alan R. Hirsch, who wrote the review of his book,
Chemical Brain Injury,
5
was offered as an expert along with Dr. Kilburn in the case of
Nelson v. Tennessee Gas Pipeline Company,
No. 95-1112, 1998 WL 1297690 (W.D.Tenn. Aug.31, 1998). Dr. Kilburn further admitted that he and Dr. Hirsch prepared expert opinions regarding the plaintiffs exposure to PCBs causing neurological problems and both were excluded in a
Daubert
hearing from providing expert testimony in that case. Dr. Kilburn saw plaintiff on one occasion, on February 13, 1996, and wrote a letter to plaintiff on February 16, 1996. Dr. Kilburn stated that his diagnosis that he made of plaintiff at that time continues to be his diagnosis as of the time of the
Daubert
hearing, and his conclusion was that plaintiffs condition was caused by his exposure to Rubiflex. That same opinion is incorporated into his report dated July 28, 1998, and it is the same opinion that he gave in his deposition of September 1-2, 1998.
At the time of his diagnosis of plaintiff, Dr. Kilburn had seen no medical records on plaintiff, and he had not seen any of plaintiffs employment records to determine what sort of jobs he had performed and what exposure he might possibly have
*1108
incurred in his employment. Dr. Kilburn stated that he covered this information in preparing his medical history, but that he received all of his information from plaintiff and his wife. Dr. Kilburn was aware that plaintiff had been exposed to aircraft fuel solvents in the course of his work, but he had not reviewed the MSDSs for Rubi-flex or its constituents at the time he rendered his expert opinion on February 16, 1996. He was not aware of the amount of Rubiflex plaintiff had been exposed to, he had not performed any animal studies with Rubiflex, and did not know if any such studies had been performed with the exact components or Rubiflex. He was not aware of the dosage of Rubiflex received by plaintiff and had not done any testing or modeling to calculate plaintiffs exposure to Rubiflex. Dr. Kilburn agreed with the statement made in his deposition that he had found no scientific or medical literature suggesting that Rubiflex could lead to neurological problems, but stated that the injury received by plaintiff demonstrated that Rubiflex exposure resulted in plaintiffs injury.
Dr. Kilburn admitted that although he had mentioned diisocyanates in his testimony and in his report of July 28, 1998, he did not know if diisocyanates was a component of Rubiflex. Dr. Kilburn further admitted that the article he referred to in his July 28, 1998, report relating to diisocya-nates discussed respiratory problems caused by the chemical but that the pulmonary function test administered by Dr. Kil-burn on plaintiff was normal.
Dr. Kilburn testified that the strength of the association between Rubiflex and plaintiffs neurological problems was 100%, taking into account plaintiffs situation, but he was not aware of any other exposures to Rubiflex. In response to counsel’s question, “So how much of an exposure to Rubiflex is necessary to produce neurological problems,” Dr. Kilburn replied, “Oh, is that really a pertinent question? We know that for Andrew Downs he received enough, and as my pharmacology professor, Lewis Goodman, replied when asked what was the proper dose of a drug, he would say enough to do the job you’re looking to get done. And, you know, if the job was to cripple Andrew Downs, then he got the dose that would do that.” Dr. Kil-burn stated that while it was possible that the splash of Rubiflex which got into his eye affected his visual field, it was unlikely that the Rubiflex penetrated the eye because the eye’s retina is well defended against outside influences. At the same time, Dr. Kilburn testified, things do get into the blood stream and go to the eye and can wipe the retina out. Dr. Kilburn admitted that the splash that plaintiff received in his right eye was not what caused the damage to his visual field.
After plaintiff was exposed to Rubiflex, there was a period of time when plaintiff seemed to be incubating without having any neurological symptoms but he was not aware of any literature speaking to neurological problems resulting from a single exposure to the chemicals which are in Rubiflex. There is literature discussing neurological problems resulting from sniffing glue over quite a long period of time, which contains toluene. Dr. Kilburn also stated that as far as other potential causes for plaintiffs neurological problems that he had found, all of the information that Dr. Kilburn had about plaintiffs prior exposures came exclusively from either plaintiff or his wife. In addition, Dr. Kil-burn admitted that he did not know of any precedents for neurological symptoms like he observed in plaintiff from one occasion of glue sniffing.
IV.
DEFENDANTS’ EXPERT WITNESSES
Defendant ICI Americas, Inc., presented the testimony of Dr. David M. Masur. Dr. Masur related that he is a neuropsy-chologist, holding a Ph.D. in neuropsychol-ogy from the City University of New York. He is board certified as a clinical neuropsychologist by the American Board of Professional Psychology and he is currently the Director of Neuropsychology in the Department of Neurology at Montef-
*1109
ior Medical Center and a clinical professor of neurology at Albert Einstein Medical School. Dr. Masur’s curriculum vitae was introduced into evidence as Defendant’s Exhibit 2. Dr. Masur explained that neu-ropsychology is a speciality of psychology that involves trying to understand how the brain works. Typically, Dr. Masur testified, neuropsychologists used standardized psychological tests to determine how people function, and the kinds of cognitive behaviors that people use on a day to day basis. The word, “cognition,” simply describes things like memory, language, concentration, and special abilities, and specific tests are administered in order to investigate each of those particular areas and to try to infer something about brain function.
Dr. Masur testified that he examined and evaluated plaintiff and disagreed with the findings of Dr. Kilburn. Dr. Masur testified that he had reviewed Dr. Kil-burn’s methodology with respect to neu-ropsychology and related that the methodology employed by Dr. Kilburn in his neuropsychological evaluation of plaintiff was not consistent with what is generally accepted in the neuropsychological community. Dr. Masur related that neurop-sychological testing by its very nature is fairly involved and requires administering many different kinds of tests. One of the hallmarks of a finding in neuropsychology is the repeatability of certain tests in order that the tests can be standardized and roughly measure the same function when administered. In his review of the test battery that Dr. Kilburn used, Dr. Masur related, he found that Dr. Kilburn extracts different subtests from tests that are standardized and administers them inconsistently. For example, Dr. Kilburn uses a test like trail making, which is one test of visual motor function, and Dr. Kil-burn will administer a particular kind of memory test. There is no basis or consistency for developing a battery to investigate the particular functions, Dr. Masur testified. In addition, the administration of the test is done by an individual who has no training in psychology. It is the standard of practice of the International Neuropsychological Society that trained graduate or doctoral students in psychology must administer these tests because they require specific detailed training in order to give and interpret a number of the tests. All I.Q. tests are protected, Dr. Masur testified, and only a licensed psychologist should be allowed to administer an I.Q. test unless it is being administered for research purposes.
Dr. Masur pointed out that Dr. Kilburn related that plaintiff had one abnormal score on one memory test, but the test is statistically elevated, which is language that is inconsistent with any kind of demonstration of significance, because there is no basis for understanding what a statistical elevation is. Dr. Masur stated that, after listening to Dr. Kilburn, the norms that he used are based on his own collective data as opposed to looking at standardized test data which has been standardized on a large number of individuals. Dr. Masur further pointed out that Dr. Kilburn concluded that plaintiff is not malingering and based his opinion upon the information subtests of the Wechsler Adult Intelligence Scale, and related that particular test had never been demonstrated to have anything to do with the measurement of malingering. In addition, Dr. Kilburn relied upon the Rey 15-Item Recall Test which he characterized as a test of malingering and plaintiff performed perfectly on that test. The problem with that test is, however, Dr. Masur testified, it is well known in the neuropsychology literature to be insensitive to malingering and is an older version of tests that are much more statistically validated and reliable. Dr. Masur further pointed out that Dr. Kil-burn relied upon reaction time tests which require the giving of maximum effort by the individual taking the test. Last of all, Dr. Masur points out that Dr. Kilburn relies upon test norms but never specifies what the control group is upon which he bases those norms.
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Dr. Masur testified that there is a generally accepted methodology for evaluating someone who is believed to have had a brain injury from exposure to toxic chemicals and stated that a clinical neuropsycho-logical evaluation is no different from any other attempt to investigate any other kind of brain dysfunction. A neuropsy-chologist will take a medical history, and administer a fairly long battery of tests, keying in on the reproducibility of the results. A neuropsychologist would administer two or three different kinds of memory tests or two or three different kinds of tests of concentration, a test to measure malingering or symptom validity, and a test of emotional and personality functioning. This standard protocol or methodology is set forth by the two major organizations dealing with neuropsycholo-gy, the International Neuropsychological Society and the National Academy of Neu-ropsychology. The testing done on the plaintiff did not follow this protocol. The neuropsychological or neurobehavioral testing that plaintiff received is a collection of some different subtests from the Wech-sler Scale and a couple of other subtests, tests of memory and tests of symptom validity or malingering, which are generally not employed today, Dr. Masur testified. The protocol identified by Dr. Masur is generally accepted in the field of neu-ropsychology and while all neuropsycholo-gists will not use the identical test battery, the general principles of clinical evaluation hold forth among neuropsychologists, which is the reproducibility of the results, the attempt to investigate as many areas of dysfunction or possible dysfunction as one can, to investigate symptom validity and to investigate personality function. There are generally accepted practices in the field of neuropsychology, Dr. Masur testified, and Dr. Kilburn’s methodology does not fit in the generally accepted methodology in the field of neuropsycholo-gy-
On cross-examination, Dr. Masur testified that, in regard to the Rey Recall Test, the deviation from normal is 2.0 rather than 1.5 and Dr. Masur found that plaintiff performed more poorly on that exam than he did when the test was administered by Dr. Kilburn.
The next witness presented by the defendant was Dr. Herbert H. Schaumburg, M.D. Dr. Schaumburg’s curriculum vitae was introduced into evidence as Defendant’s Exhibit 3. Dr. Schaumburg is Professor and Chairman of Neurology at the Albert Einstein College of Medicine and his sub-speciality is neurotoxicology, which is the study of the adverse effect of chemicals upon the nervous system. Dr. Schaumburg received his medical degree in 1960, served his internship at Vanderbilt University Hospital, did a neurology residency at Albert Einstein College of Medicine and two years of fellowship at the Massachusetts General Hospital, and a year of fellowship at the University of London. Dr. Schaumburg has been at Albert Einstein College of Medicine since completing his training and has studied the adverse effects of chemicals on the brains and nervous systems of animals and of human beings.
Dr. Schaumburg explained that the field of neurotoxicology involves the undesired effect of chemicals, either pharmaceutical chemicals, drugs used to treat people or drugs of abuse, and also industrial chemicals and environmental chemicals. Dr. Schaumburg has written about 105 papers in this field and edited the standard textbook used for the teaching of neurotoxicol-ogy. Dr. Schaumburg examined and evaluated plaintiff, along with his colleague, Dr. Herskovitz, and his findings are set forth in his Rule 26 report as follows:
1. Based upon my neurological examination of Andrew Downs, I can find ' no evidence of a neurological impairment that may be attributable to the reported chemical exposure of 1995.
2. Given the nature of Mr. Downs’ complaints, my neurological examination of him, and the findings of Drs. Steven Herskovitz, Thomas Slomowitz, William Paulsen, and David Masur, the most probable ex
*1111
planation for his complaints is his desire for secondary gain from the lawsuit he initiated. [Doc. 49, Exhibit B, attached].
Dr. Schaumburg related that he had reviewed Dr. Kilburn’s methodology used in diagnosing plaintiff and in reaching his expert opinions, and Dr. Schaumburg disagrees with Dr. Kilburn’s methodology. In addition, Dr. Schaumburg testified that four of Dr. Kilburn’s conclusions are in striking disagreement with the seven fundamental tenants of neurotoxicology. The first is the delay in the onset of two and one-half months following one exposure to the injury complained of by the plaintiff. Based upon his experience in hundreds of cases of people exposed to solvents and things of that nature, the individual knows about it very quickly when an individual is exposed to a toxic chemical, and waiting two and one-half months to have the onset of ptosis and facial numbness would be unheard of. Second, Dr. Schaumburg testified, for substances of this type it takes repeated exposure to these sorts of chemicals to produce any kind of persistent effect. One exposure to a high level of a solvent or a polymerizing substance can produce intoxication, can make the individual very light-headed, and can even make the individual lose consciousness, but it is very much like having an anesthetic, you get up the next day and you are fine, Dr. Schaumburg explained. For example, sniffing toluene will cause the individual to have a terrible headache and to be unsteady the next day, but in two days, the individual would be fine. It takes repeated exposure of about six months of inhaling toluene or other solvents to damage the brain and the nervous system.
Third, neurotoxins of this type do not affect only one side of the face and only one eye. If you are exposed to a neurotoxic substance like acrylamide, it isn’t the hand that gets the neuropathy, it’s the whole body, the feet and both hands, because the chemical gets into the nervous system and circulates throughout the brain and the nerves. It is not a local effect, Dr. Schaumburg testified. Fourth, Dr. Schaumburg testified, after plaintiff had his eyelid problem and facial numbness and was seen by an experienced neurologist and was found to have no neurological findings, he continued on to have a progressive deficit. Plaintiff asserts that he has cognitive impairment and now has a very unsteady gait. This does not happen, Dr. Schaumburg testified, because if you get exposed to a neurotoxin you will certainly have a deficit, but then you get better, in almost every instance, you get better. You do not go on to get worse, because the chemical is not stored in the body but eliminated from the body.
Dr. Schaumburg stated that these four fundamental tenets apply to this case and sum up his feelings about the case. There is a very close temporal association between the symptoms of the victim and the exposure, and a delay of two and a half months between the same is not recognized in the medical literature. A onetime exposure does not produce the type of results experienced by plaintiff for a chemical such as Rubiflex. Rather, it requires daily exposure. The difference between generalized problems and local problems is also a significant consideration, Dr. Schaumburg testified. Plaintiffs complaints were primarily on one side, and a neurotoxic disease is never local and never strikingly asymmetrical. The chemicals go all over the nervous system, and when they get to the brain they do not go to just one half of the brain, but to the whole brain. Last of all, the difference between the immediate deficit versus a progressive deficit is also important and recognized in the medical literature.
Dr. Kilburn, in his deposition, testified that plaintiffs droopy eye and his ptosis was evidence of the seventh nerve palsy and seventh nerve involvement. Dr. Schaumburg said that this finding is erroneous. If the seventh nerve is involved, the individual’s eye is too wide open. In addition, neurotoxic chemicals do not cause seventh nerve lesions of one side, it would be bilateral.
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On cross-examination, Dr. Schaumburg testified that there are two chemicals that give rise to facial paralysis without other findings. One is ethylene glycol poisoning and the other is severe cases of trichloroe-thylene intoxication. But in those instances, the facial involvement is symmetrical, never just on one side. In plaintiffs case, his involvement is one-sided, he did not have any complaints of numbness on the other side of his face, and his other eyelid did not lag. Dr. Schaumburg further testified that people react to toxic chemical exposure in a remarkably stereotypical manner with very few exceptions. The problem with individuals, Dr. Schaumburg stated, is that one individual can be standing right next to another and get a very different exposure.
Dr. Schaumburg pointed out that plaintiff was examined by a very well qualified senior neurologist, Dr. Paulsen, who found no neurological problem with the plaintiff except for his drooping lid and a complaint of headache. That is the reason why, Dr. Schaumburg testified, he felt very confident that plaintiff did not have a subtle problem that would not manifest itself until two and a half months after his exposure. The headache should have gone away after a period of time unless plaintiff had a history of migraine. Plaintiff was also examined on several occasions by a dermatologist, Dr. Faulk, for local irritation, but when Dr. Paulsen examined plaintiff two and a half months later, he was “neurologically clean, without complaints.” Secondly, Dr. Schaumburg stated, plaintiffs eye problem really was an urticarial, it was an allergic problem, that Dr. Faulk picked up, and it probably is not related at all to Rubiflex. Dr. Schaum-burg testified further that if an individual is a migraineur, exposure to a toxic chemical could trigger an episode of migraine, but that will stop. “You don’t wind up with lifelong headaches with one exposure to a neurotoxic chemical. Every day people are exposed to carbon monoxide which causes a terrible headache, and they don’t feel well for several days, but then they are not left with lifelong headaches from that.”
Dr. Schaumburg related that plaintiff was sent to Dr. Paulsen because people were concerned about the drooping eye that he had been seen for and the mistaken impression that he had a seventh nerve lesion. By the time he saw Dr. Paulsen, he was walking normally. Dr. Paulsen found no evidence of numbness over his face, he found there were no complaints of cognitive impairment, and now plaintiff asserts that he can barely walk at all and is very, very severely cognitively impaired. Those are things that Dr. Paulsen would not have missed, Dr. Schaumburg testified, because a first year medical student would not miss them. Plaintiff was seen by a superb, very good neurologist at a time when his symptoms would have been very apparent because they are things that are very obvious and that are clearly, when plaintiff is examined, striking. Those symptoms would not have been missed.
On redirect examination, Dr. Schaum-burg related that he and a colleague are editors of the textbook that is used in the field of neurotoxicology and he was familiar with the literature in the field of neuro-toxicology. There is nothing in the reported literature that would suggest that a single dose, a very short-term exposure to an epoxy-like product, would produce such a delayed reaction and progressive reaction over such a long period of time as that experienced by plaintiff.
Upon questioning by the court, Dr. Schaumburg testified that in his opinion as a neurologist and based upon his review of Dr. Kilburn’s deposition, he did not believe that Dr. Kilburn is qualified to give an opinion about medical causation in a toxic chemical case such as the one at bar.
The last witness presented by defendant ICI Americas, Inc., was Dr. Phillip Guzeli-an, a professor of medicine at the University of Colorado Health Science Center in Denver, Colorado. Dr. Guzelian received his medical training at the University of Wisconsin, served two years with the Na
*1113
tional Institutes of Health, did additional training in internal medicine, liver disease and toxicology, at Yale University, and at the University of California in San Francisco. He was a faculty member of the Medical College of Virginia in Richmond, Virginia, and now has an academic practice. Dr. Guzelian’s curriculum vitae was introduced into .evidence as Defendant’s Exhibit 4.
Dr. Guzelian testified that he is a board-certified internist with special training in liver disease, and he is a medical toxicologist. Dr. Guzelian related that toxicology is the study of the undesirable or unwanted effects of physical chemical agents in the environment and a medical toxicologist is one who approaches that problem from a human point of view, whereas a Ph.D. toxicologist tends to accentuate animal testing as the way of estimating adverse effects in humans or of establishing safety for humans.
Dr. Guzelian testified that he had reviewed the work done by Dr. Kilburn in this case, reviewed the methodology utilized by Dr. Kilburn, and concluded that the conclusion reached by Dr. Kilburn, that there was a cause and effect relationship between exposure to Rubiflex and plaintiffs neurologic condition, was not reached by the use of accepted scientific methodology.
Dr. Guzelian explained that an individual may be exposed to a chemical but he may not get a dose of the same, or if the individual did get a dose it might not be a dose of a magnitude that would result in an injury. Dr. Guzelian pointed out that although every substance is poisonous, it is the dose that determines whether the substance is toxic or not. In order to determine the toxicity of a chemical for a species or even in any experiment, the examiner must know something about the dose of that chemical. If the dose is high enough, any substance can be toxic. All chemicals are toxic, Dr. Guzelian testified, and instead of talking about toxic chemicals one should talk about toxic exposures and toxic doses of chemicals.
Dose response is absolutely fundamental to understanding the toxicity of any chemical, Dr. Guzelian testified. Dose can determine the frequency or intensity of an effect on a given organ system and the dose can also determine which organs are affected. Dr. Guzelian used the example of an aspirin as being beneficial to the cardiovascular system when used in small doses, as being beneficial to the musculo-skeletal system in larger doses, but as causing ringing in the ears when the dose is sufficient to create an impact upon the auditory system. So, Dr. Guzelian testified, if he were to see a person who said they had ringing in the ears and he asked the patient if the patient had been exposed to aspirin and they said yes, without knowing more about dose, Dr. Guzelian pointed out that he would be in error if he made a conclusion that aspirin caused the ringing in the patient’s ear. He would have to know that the dose was at least in an approximate range to make it an eligible candidate to explain the tinnitus, and as the dose of aspirin increases, the patient can have G.I. bleeding, the patient can get systemic acidosis, and then the patient can die. Thus, Dr. Guzelian testified, dose is fundamental. Without knowing the dose, it will almost always be impossible to specify toxicity. Dr. Guzelian further testified that there is a chronic threshold and there is an acute threshold, and both are well recognized for most chemicals in toxicology-
Dr. Guzelian testified that there are at least four steps that must occur before an individual can ever get injured from any chemical in the environment. These are mandatory steps, Dr. Guzelian testified, and if any of these steps are missing, it is unlikely that the individual can make a conclusive medical evaluation.
The first step is source, the chemical has to come from somewhere. Second, that source has to be released into an exposure. Next, the exposure has to turn itself into a dose. And finally, the dose has to be of a nature and a magnitude such that it is
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capable of causing some defined health effect. Source is usually obvious, Dr. Guzelian testified, and in order to determine exposure, the examiner must carry out some kind of an experimental test. The examiner should measure and identify the chemical and the medium of exposure. In this case, the medium of exposure was mostly an air exposure case. The chemical was spilled into the air, and plaintiff claims that there was some inhalation, and there could have been some skin exposure as well. Next, the examiner must determine dose, and the best way to determine a dose is to individualize it by actually taking a sample, a biological sample, of blood or urine, exhaled breath, to determine the presence and the amount of the chemical inside the body. This is ordinarily done by making an exposure assessment, that is, making a model or predicted level of what the individual would have measured if the individual had a measurement device present when the exposure occurred. This is called a dose reconstruction, making assumptions in biologic models, coming up with an estimate of the amount of the chemical in the blood. Last of all, once that has been accomplished, the examiner defines the medical condition by doing regular medical testing as might be done in any doctor’s office, and then carrying out a differential diagnosis to define the medical condition.
Dr. Guzelian explained that a differential diagnosis starts with collecting the medical data §nd then making a diagnosis. The examiner makes a list of all the recognized disease entities which could explain the medical data and then by a process of inclusion or exclusion, the examiner tries to come up with a diagnosis. Dr. Guzelian testified that in his profession as a medical toxicologist, once a diagnosis is reached by the process of differential diagnosis, he is asked to carry out causation analysis. That is, as a medical toxicologist, he would be asked whether it is possible that a patient who had exposure to a chemical could have developed a disease entity as a result of that exposure. Dr. Guzelian further explained that there is sometimes confusion between a differential diagnosis, that is, the process by which researchers actually define the person’s disease medically, and causation analysis, which is identifying which of the known or suspected causes could explain the patient’s illness. Consequently, Dr. Guzelian stated, it is logical that if you cannot make a diagnosis, it is almost impossible to come up with a causation, because the researcher does not know exactly what it is he is trying to prove the cause of.
In this case, Dr. Guzelian testified, it was not possible for Dr. Kilburn to make a valid causation analysis. In order to make such an analysis, you have to know the individual exposure and dose, you have to look at the time course of the relationship, and you have to know about alternative causes. There should also be coherence of the clinical and biological and mechanistic evidence to support the researcher’s opinion. The first of these five criteria deal with general causation and the last four deal with specific causation, for a named individual. In order to show causation, the researcher must look at epidemiologic studies and show that there is a strength of an association, that is consistent, and then the researcher looks for specificity, dose response, and coherence. In addition, some researchers would add a control called confounders.
When asked about Dr. Kilburn’s finding that the proof he has of the disease or of the injury to plaintiff was shown by the plaintiff himself, since he was exposed to Rubiflex and he is now ill, Dr. Guzelian stated that such a finding does not fit with anything that he testified about. This is circular reasoning, Dr. Guzelian pointed out, because it asserts that plaintiff became ill after being exposed to the chemical, he received enough exposure because he became ill, his illness was caused by his exposure, and you know that he was exposed because he became ill.
Dr. Guzelian further testified that there is an orderly manner for establishing general causation, the strongest evidence will
*1115
come from human studies, what researchers call epidemiology or clinical studies. The next strongest evidence will come from animal studies, and then the next strongest would be what are called test tube studies, experiments with single cells or tissues. Dr. Kilburn did not follow the generally accepted criteria for establishing individual causation in plaintiffs case, Dr. Guzelian testified, he did not know of any studies that supported his view of Rubiflex or of its components being capable of producing the particular neurologic condition, and general causation has not been demonstrated in this case. In addition, Dr. Kil-burn has failed to establish individual causation because first of all, Rubiflex has not been identified as a substance that is capable of causing plaintiffs medical condition, the amount of exposure plaintiff received to Rubiflex is unknown, and Dr. Kilburn had no idea of the amount of the dose plaintiff received. In regard to analyzing data, Dr. Kilburn admitted that he did not know either the amount of the exposure or the dose plaintiff received and did not explore alternative causes. In addition, coherence is lacking in Dr. Kilburn’s analysis considering that the injury to the plaintiff was unilateral, it was local, it changed, and it did not have the right timing. Thus, Dr. Guzelian testified, in his opinion as a medical toxicologist causation has not been demonstrated in this case.
6
On cross-examination, Dr. Guzelian admitted that he had not examined plaintiff, did not believe that it was necessary for him to examine plaintiff to analyze the methodologies he has analyzed in this case, and did not believe that an examination was necessary to evaluate Dr. Kilburn’s methodology. If he were asked to form a causation conclusion on his own, Dr. Guze-lian testified, he would have to use the same rules which he described during the course of his testimony to reach a valid causation conclusion.
Dr. Guzelian further testified that whether Dr. Kilburn’s conclusions are correct or incorrect, he reached them for the wrong reasons. Dr. Guzelian stated that he did not believe that an individual could conclude causation to a reasonable degree of medical certainty in the absence of requisite data. If an examiner cannot determine the dosage, then the researcher cannot come to an opinion of causation to a reasonable degree of medical certainty. Dr. Guzelian stated that there was no reason for Dr. IGlburn to take a blood sample two and one-half months after plaintiffs exposure, because the chemical would have dissipated and the test would not have been useful.
On redirect examination, Dr. Guzelian pointed out that if you cannot take biologic samples, researchers construct models, make hypotheses, make calculations of what the exposure would have been and seek to reconstruct the accident. Dr. Guzelian pointed out-that EPA uses modeling techniques when they measure things at Superfund sites and they use assumptions, wind models, groundwater models, to estimate exposure. In this case, there had been no estimation or modeling done.
V.
PLAINTIFFS’ REBUTTAL
Plaintiff recalled Dr. Kilburn at the
Daubert
hearing who pointed out that in his first report of February 16, 1996, he reported that plaintiff developed pain in his face and arm within fifteen minutes of his exposure to Rubiflex and that this pain had never gone away completely. Dr. Kil-burn stated that defendants’ assertion that plaintiff did not have symptoms for two and a half months is corrected by that information. Secondly, Dr. Kilburn testified, about two months after his exposure, which would have been approximately mid-December, plaintiff began having trouble
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walking and falling, and Dr. Kilburn noted that in his initial report and further noted that such symptoms take time to develop. Therefore, Dr. Kilburn concluded, the idea that this type of chemical exposure cannot do substantial damage to the nervous system without prolonged or repeated exposure is “just dead wrong.” Dr. Kilburn reported that he had studied fourteen firemen who were exposed to a fire explosion in a transformer room in Shreveport, Louisiana, which exposed them to very high concentrations of PCBs and products of PCBs that are neurotoxic such as dibenzo-phurans, and that exposure was verified by blood samples which were taken and reserved and later analyzed. The men had profound balance problems and they were never able to be certified to go back to fighting fires because they could not drive with safety or go up a ladder with safety. This was a single exposure to PCB and chemical damage can occur from a single dose and can be devastating to the nervous system. It is not a matter of aggregation or effect over months or years, Dr. Kil-burn testified, and it can occur from a single time, and he had observed it with epoxies. The burning experienced by the plaintiff was evidence that nerves were irritated and neurological responses such as itching and burning come from nerves, and the easiest way to get such a response is to put the chemical on the nerves.
In response to Dr. Schaumburg’s conclusion that Dr. Kilburn is not qualified to give expert testimony in the field of neuro-toxicology, Dr. Kilburn testified that he had worked with patients who developed a sensitivity to a particular chemical because of an amplifier similar to an individual receiving a bee sting and then becoming very ill with subsequent bee stings. The bee sting protein is acted upon by the immune system which prepares to act more quickly and more viciously in response to the next bee sting and that is exactly what the immune system has been built for, for defense. In this ease, however, it turns out that the defense is potentially fatal and in some instances lower and lower doses of a substance, down to an amount that is scarcely detectible by the most sensitive devices, can invoke a reaction. Dr. Kilburn further testified that it is the experiences he has had and various articles and experiments he has seen through the years, as opposed to learning about this field in school itself, that made him feel qualified to testify in the field of neurotoxicology. Dr. Kilburn stated that he was well educated in chemistry and pharmacology and believes that he is as qualified to testify in the fields of pharmacology or toxicology as a Ph.D. - M.D. in the area due to his experience and training.
Dr. Kilburn testified that he had not heard anything from any of the defendants’ witnesses that shook his confidence in the procedures that he followed and the opinions he had reached in this case and noted that neither Dr. Schaumburg nor Dr. Masur had any argument with his observations, their arguments were on details concerning whether he was capable of doing the measurements. The measurements speak for themselves, Dr. Kilburn stated, and this case boils down to an interpretation problem of what those observations mean. While it is possible that plaintiff had an undiagnosed disease which was not uncovered until he got the exposure, it is much more likely that it is a condition that came on when his pain started, and was directly related to the exposure that caused the pain.
On cross-examination once again, Dr. Kilburn testified that plaintiff was examined by Dr. Paulsen in January of 1996, who found no neurological problems with his gait or his walk. Dr. Kilburn noted, however, that Dr. Paulsen examined plaintiff on an examining table and did not get him up to walk. Plaintiff experienced some skin problems immediately after his exposure to Rubiflex, but he did not complain of any neurological problems such as the ptosis or blurred vision until December 21,1995.
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VI.
DEFENDANTS’ MOTION FOR RECOVERY OF COSTS
On the issue of Dr. Kilburn’s failure to show up for the first scheduled
Daubert
hearing, Dr. Kilburn referred to his affidavit stating that he was appearing as a witness in a ease in Texas and did not have any way of knowing that he would not be able to get to Knoxville when this
Daubert
hearing was originally set. Dr. Kilburn testified that he finished his cross-examination in the case in Texas at mid-day on the day that he was supposed to be here at 9:00 a.m., a Friday, and he could not leave the courtroom earlier. The witnesses before Dr. Kilburn went slowly, and when he got on the stand at the end of a full day, his direct and cross-examination was not completed for the next full day and three and a half hours into the following day.
Dr. Kilburn testified that he in fact had made arrangements to go back to Los Angeles and then repurchased a ticket that would have gotten him from Los Angeles to Knoxville, and he thought that he had a full day to travel to Knoxville. He could not use his ticket that he had purchased, and had to be reticketed to go back to Los Angeles. Dr. Kilburn testified that he made arrangements to fly directly from Texas to Knoxville to be here for the
Dau-bert
hearing, he had reservations for Thursday evening to come through Atlanta to Knoxville, but his testimony was not completed on Thursday.
During cross-examination on this issue, Dr. Kilburn testified that he went to Texas on Monday to be prepared to give testimony on Tuesday. The trial was already underway and he planned to testify on Tuesday and Wednesday, fly back to Los Angeles on Wednesday night, and then fly from Los Angeles to Knoxville on Thursday to testify on Friday in this ease. He thought that he would be able to complete his testimony on Wednesday, but that did not occur.
VII.
RELEVANT AUTHORITIES
Federal courts sitting in diversity apply state substantive law and federal procedural law.
Erie R. Co. v. Tompkins,
304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938). Federal diversity jurisdiction provides an alternative forum for the adjudication of state created rights, but it does not carry with it generation of rules of substantive law. The United States Supreme Court ruled in
Erie
that except in matters governed by the federal constitution or by acts of Congress, the law to be applied in any case is the law of the state. Under the
Erie
doctrine, federal courts sitting, in diversity apply state substantive law and federal procedural law.
Gasperini v. Center for Humanities, Inc.,
518 U.S. 415 , 116 S.Ct. 2211, 2219 , 135 L.Ed.2d 659 (1996).
In
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), the Supreme Court held that trial judges were required to make an initial determination “of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.”
Id.
at 592-93 , 113 S.Ct. 2786 . This two-step inquiry requires the trial judge to assess the relevance and the reliability of the expert’s testimony. The relevance requirement directs that there be a “fit” between-the testimony and the issue to be resolved by the trial.
United States v. Bonds,
12 F.3d 540, 555 (6th Cir.1993). The reliability requirement is designed to focus on the methodology and principles underlying the testimony.
United States v. Bonds,
12 F.3d at 556 .
Greenwell v. Boatwright,
184 F.3d 492, 495-96 (6th Cir.1999).
The purpose of a
Daubert
hearing is to determine “the scientific validity and thus the evidentiary relevance and reliability of the principles that underlie a proposed submission.”
Daubert,
509 U.S. at 594-95 ,
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113 S.Ct. 2786 . The Supreme Court has instructed in
Daubert
that courts are not to be concerned with the reliability of the conclusions generated by valid methods, principles and reasoning. If the principles, methodology and reasoning are scientifically valid then it follows that the inferences, assertions, and conclusions derived therefrom are scientifically valid as well.
Greenwell,
184 F.3d at 496 .
The Sixth Circuit Court of Appeals noted in
United States v. Harris,
192 F.3d 580 (6th Cir.1999) that although
Daubert
was restricted by its facts to scientific testimony, the Sixth Circuit has broadly applied
Daubert’s
relevance and reliability analysis to all evidence offered under Rule 702, Federal Rules of Evidence. Moreover, the United States Supreme Court in
Kumho Tire Co. v. Carmichael,
526 U.S. 137 , 119 S.Ct. 1167, 1176 , 143 L.Ed.2d 238 (1999), recently broadened the
Daubert
analysis to specifically include “technical” as well as “other specialized knowledge.” Judge Merritt, in his dissenting opinion in
Greenwell v. Boatwright, supra,
observed that the Sixth Circuit has long required judges to give a “hard look” and carefully assess the scientific conclusions and reasoning of experts because jurors are frequently overly impressed by conclusory opinions of scientific experts paid by a party.
See, Turpin v. Merrell Dow Pharmaceuticals, Inc.,
959 F.2d 1349, 1352 (6th Cir.1992). Today, Judge Merritt observed, trial judges have an unequivocal duty to give careful scrutiny to the testimony of paid experts in order to avoid verdicts based on “junk science.” As the Supreme Court again stated this past term, Judge Merritt further observed, Federal Rule of Evidence 702 “imposes a special obligation upon a trial judge to ‘insure that any and all scientific testimony ... is not only relevant, but reliable,’”
Kumho Tire Co. v. Carmichael,
526 U.S. 137, 147-149 , 119 S.Ct. 1167, 1174 , 143 L.Ed.2d 238 (1999),
quoting Daubert,
509 U.S. at 589 , 113 S.Ct. 2786 . Under
Daubert,
trial judges must act as “gatekeepers” to undertake a “preliminary assessment of whether the reasoning or methodology underlying [expert] testimony is scientifically valid.” 509 U.S. at 592-93 , 113 S.Ct. 2786 . Thus, trial judges must be on guard against all forms of junk science that may creep into the courtroom.
Greenwell,
184 F.3d at 501 (Merritt, J., dissenting).
In
Daubert,
the United States Supreme Court suggested four nonexclusive questions for judges to consider when admitting scientific evidence: (1) Is it testable and has it been tested? (2) Has it been subjected to peer review? (3) What is the potential rate of error? (4) Is the technique widely accepted in the relevant scientific community? A fifth factor has been added to the Supreme Court’s list by a number of the circuits considering expert testimony, including the Sixth Circuit Court of Appeals: “Whether the experts are proposing to testify about matters growing naturally and directly out of research they have concluded independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying,” because the former “provides important, objective proof that the research comports with the dictates of good science.”
Smelser v. Norfolk Southern Railway,
105 F.3d 299 (6th Cir.1997). In
Smelser ,
the Sixth Circuit reversed the trial court because the trial court allowed plaintiffs expert to offer his opinion that a defective shoulder belt in the company pickup truck, and not a rear-end collision, caused the employee’s back injuries and aggravated his neck injuries. The trial court failed to adequately assess the reliability of the methodology underlying the expert’s opinions both as to defect and causation and also failed to recognize that the expert’s opinion as to the cause of the plaintiffs specific injuries went beyond his expertise in biomechanics. Thus, the court ruled the trial court failed to adequately perform its gatekeeping functions as defined by the Supreme Court in
Daubert.
The Sixth Circuit initially noted that under
Daubert,
the trial judge, when performing the gatekeeping function, must use a two-step inquiry which examines the
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expert’s opinion testimony for reliability and relevance. First, the court is to determine “whether the expert’s testimony reflects ‘scientific knowledge,’ whether their findings are ‘derived by the scientific method,’ and whether their work product amounts to ‘good science.’ ” An expert opinion that is based on scientifically valid principles will satisfy Rule 702, Federal Rules of Evidence; an expert’s subjective belief or unsupported speculation will not.
Secondly, the Sixth Circuit ruled, the court “must insure that the proposed expert testimony” is relevant to the task at hand. When considering reliability, the trial court must focus on the soundness of the expert’s methodology and not the correctness of his conclusions. The trial court in
Smelser
failed to consider any of these factors, the Sixth Circuit ruled, and reversed the judgment for the plaintiff.
The Sixth Circuit Court of Appeals has stated that the Tennessee law of products liability, as interpreted by the Tennessee courts, sets a “fairly stiff standard.”
Goins v. Clorox Co.,
926 F.2d 559, 561 (6th Cir.1991). An excellent analysis of the Tennessee Products Liability Act is contained in the Tennessee Supreme Court decision of
Ray ex rel. Holman v. BIC Corp.,
925 S.W.2d 527 (Tenn.1996), wherein the Tennessee Supreme Court explained that both a consumer expectation test and a prudent manufacturer test is provided for under the Tennessee Products Liability Act’s definition of “unreasonably dangerous.”
Id.
at 531-32 . The Tennessee Products Liability Act also provides that the term, “defective condition,” means a condition of a product that renders it unsafe for normal or anticipatable handling and consumption. TenmCode Ann. § 29-28-102. Whether the consumer expectation test or the prudent manufacturer test is utilized, however, the Tennessee Supreme Court has ruled that the burden remains on plaintiff in a products liability action to establish injury as a result of a defective or unreasonably dangerous product.
Ray ex rel. Holman v. BIC Corp.,
925 S.W.2d at 533 ;
Goins v. Clorox Co.,
926 F.2d at 561 ;
see also, Browder v. Pettigrew,
541 S.W.2d 402 (Tenn.1976);
Ford Motor Company v. Lonon,
217 Tenn. 400 , 398 S.W.2d 240 (1966);
Olney v. Beaman Bottling Co.,
220 Tenn. 459 , 418 S.W.2d 430 (1967); Restatement (2d) Torts § 402A.
Thus, under Tennessee law, even if plaintiffs can establish that Rubiflex is defective and/or unreasonably dangerous, this alone is not enough to establish liability. Plaintiffs must prove that the defect or fact that the product is unreasonably dangerous proximately caused plaintiffs’ claimed injuries.
Goins v. Clorox Co.,
926 F.2d at 561 . As pointed out by the Sixth Circuit Court of Appeals, under Tennessee law a products liability plaintiff must always prove that the unreasonably dangerous or defective condition was the proximate cause of the injury.
Cansler v. Grove Mfg. Co.,
826 F.2d 1507 (6th Cir.1987);
Ricker v. Zinser Textilmaschinen GmbH,
506 F.Supp. 3 (E.D.Tenn.1978) (“to establish the liability of the defendant, it was incumbent upon the plaintiffs to prove in addition that the defective condition ... proximately caused the plaintiffs’ injuries and damages ... ”).
The Sixth Circuit Court of Appeals dealt with this same standard, although applying Ohio law, in
Conde v. Velsicol Chemical Corp.,
24 F.3d 809 (6th Cir.1994). In that case, the plaintiffs alleged that Velsicol’s commercial termiticide was a defective product that caused health problems and a loss of property value after it was applied to the basement area of the plaintiffs’ home. The district court found that most of the expert testimony offer by the Condes with respect to the issue of medical causation was inadmissible, and further found that, even if it were admissible, the testimony was insufficient to allow a jury to conclude by a preponderance of the evidence that the Condes suffered personal injuries as a result of their exposure to the termiticide. As do the plaintiffs in this case, plaintiffs in the
Conde
decision sought to recover damages resulting from the defendant’s marketing of a defective
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and dangerous product and also sought punitive damages from defendant for manufacturing a known defective product and for failing to report adverse testing results. The trial court granted summary judgment for the defendant on the issues of medical causation and product defect, ruling, in regard to medical causation, that the testimony of three of the plaintiffs’ experts was inadmissible under Rules 702 and 703, Federal Rules of Evidence, and finding that even if their testimony had been admissible, it was insufficient to allow a jury to find, by a preponderance of the evidence, that defendant’s termiticide caused the plaintiffs’ health problems.
On the issue of product defect, the trial court applied the two prong consumer expectation/risk benefit analysis required by Ohio law and entered summary judgment on both prongs of the test. On the issue of medical causation, the court noted that the plaintiffs’ three expert witnesses were not medical doctors and thus were unqualified to render differential diagnosis of medical conditions and that Dr. Conde, a family practitioner, was the only medical doctor to testify for the plaintiffs despite the fact that a number of specialists had provided extensive medical care to the family (Dr. Conde was also one of the plaintiffs). The trial court refused to accept Dr. Conde’s expert opinion because the scientific literature he cited did not support his conclusions. The Sixth Circuit affirmed the trial court.
Relying upon its earlier decision in
Turpin v. Merrell Dow Pharmaceuticals, Inc.,
959 F.2d 1349 (6th Cir.),
cert. denied,
506 U.S. 826 , 113 S.Ct. 84 , 121 L.Ed.2d 47 (1992), the Sixth Circuit stated that the Condes’ non-medical experts could only state, as did the experts in
Turpin
with respect to Bendectin and birth defects, that chlordane exposure “is consistent with” the Condes’ observed symptoms. The court further noted that plaintiffs’ non-medical experts were unable to exclude other potential causes for plaintiffs’ symptoms and their theories were inconsistent with the negative chlordane test results of the Condes’ tissue and the vast majority of the relevant, peer reviewed scientific literature. Dr. Conde, the only medical doctor to testify, the Sixth Circuit stated, did not testify on the basis of the collective view of his scientific discipline, nor did he take issue with his peers and explain the grounds for his differences. The Sixth Circuit ruled, “In sum, the ‘analytical gap between the evidence presented and the inferences to be drawn on the ultimate issue ... is too wide’ ” (citation omitted).
Conde v. Velsicol Chemical Corp.,
24 F.3d at 814 . Accordingly, the Condes’ expert testimony was insufficient to permit a jury to conclude, by a preponderance of the evidence, that chlordane exposure caused the Condes’ health problems.
Id.
The Fifth Circuit Court of Appeals was presented with a case very similar to the one at bar in
Moore v. Ashland Chemical Inc.,
126 F.3d 679 (5th Cir.1997). Although this decision is from a sister circuit, its thoughtful and thorough analysis of the manner in which trial courts should approach scientific or technical evidence utilizing the
Daubert
guidelines is instructive in analyzing the case at bar. In that case, the Fifth Circuit, sitting en banc, held that a district court did not abuse its discretion in excluding the opinion of a physician on the causal relationship between plaintiffs exposure to industrial chemicals and his pulmonary illness. A panel of the Fifth Circuit had reversed the trial court and determined that it should not have excluded the expert’s testimony
(Moore v. Ashland Chemical, Inc.,
126 F.3d 679 (5th Cir.1997)). In the en banc decision, the majority noted initially that the proffered expert witness, Dr. Jenkins, was highly qualified and was allowed to testify about his examinations of plaintiff, the tests he ran, and the diagnosis he reached. His expert opinion as to the causal relationship between plaintiffs exposure and plaintiffs pulmonary illness was excluded by the trial court and affirmed by the Fifth Circuit sitting en banc.
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In
Moore ,
the plaintiff was a delivery-truck driver who delivered several drums of chemicals manufactured by Dow Corning Corporation to Ashland Chemical Inc. When the plaintiff opened the back door of his trailer, he smelled a chemical odor that caused him to suspect that a drum was leaking. Plaintiff then contacted the plant manager for Ashland and he and plaintiff identified two leaking drums and removed them from the trailer. The manager of the Ashland plant contacted Dow and requested cleanup instructions and a copy of the material safety data sheet (MSDS) for the spilled chemicals. The MSDS identified the contents of the leaking drum and the health hazards associated with the contents and indicated that the chemical solution included hazardous ingredients, most notably Toulene. It warned that depending upon the level and duration of the exposure to fumes from the chemicals, irritation or injury to various organs, including the lungs, could result.
After the plant manager and plaintiff obtained cleanup instructions, they put the leaking drums into larger salvage drums, placed absorbent material on the spilled chemicals, swept them up, and disposed of them. The men were engaged in this cleanup for forty-five minutes to an hour. Plaintiff testified at trial that about an hour after finishing the cleanup, he began experiencing symptoms, including dizziness, watery eyes, and difficulty in breathing. Plaintiff consulted his family physician and was referred to a pulmonary specialist, Dr. Daniel E. Jenkins.
Plaintiff was not provided with any safety devices during the cleanup of the chemical, such as a respirator, and became disabled within three months. He was also a smoker for more than twenty years, had childhood asthma, and was just getting over pneumonia at the time of his exposure to the chemical. Dr. Jenkins examined the plaintiff, ran tests on the plaintiff, and reviewed his medical history. Dr. Jenkins diagnosed reactive airway disfunction syndrome (RADS), and was prepared to testify that plaintiffs Toulene exposure caused plaintiffs illness and injuries. Dr. Jenkins was recognized by all parties as an expert in pulmonary diseases.
In analyzing whether to allow Dr. Jenkins to testify, the trial court determined that Dr. Jenkins had relied upon the manufacturer’s material safety data sheet (MSDS) indicating that Toulene could cause injury to the lungs, plaintiffs onset of symptoms within one hour, the fact that plaintiff had one ease study dealing with Toulene exposure in a small room, Dr. Jenkins’ training and experience, his examination and test results of the plaintiff, and Dr. Jenkins’ assertion that there was no practical way to run scientific studies on such a chemical exposure. The defendant, on the other hand, sought to exclude Dr. Jenkins’ testimony because this was the first case that Dr. Jenkins had treated for RADS with a history of Toulene exposure, Dr. Jenkins had done no research on the subject, and the one case he was familiar with (a reported case of exposure by an individual to Toulene for two and one-half hours in a small room) had speculative conclusions according to the author of the case study, and there was no logical, scientific basis for Dr. Jenkins’ conclusion other than his opinion.
The Fift

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2504957. Public record. Not legal advice.