The opinion
United States Court of Appeals,
Eleventh Circuit.
No. 94-9131.
Robert K. JOINER, Karen P. Joiner, Plaintiffs-Appellants,
v.
GENERAL ELECTRIC COMPANY, A New York Corporation; Westinghouse
Electric Corporation, A Pennsylvania Corporation; Monsanto
Company, A Delaware Corporation, Defendants-Appellees.
March 27, 1996.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:92-CV-2137-ODE), Orinda D. Evans,
Judge.
Before BIRCH and BARKETT, Circuit Judges, and SMITH*, Senior
Circuit Judge.
BARKETT, Circuit Judge:
Robert Joiner ("Joiner") and his wife, Karen Joiner, brought
this suit in state court on August 5, 1993, seeking damages for
personal injuries from lung cancer allegedly caused by Robert
Joiner's exposure to polychlorinated biphenyls ("PCBs") while
working for the City of Thomasville, Georgia ("City"). Monsanto,
General Electric Company, and Westinghouse Electric Corporation
("defendants") removed the action to federal district court, which
excluded the testimony of the Joiners' experts and granted the
defendants' motion for summary judgment, which the Joiners now
appeal. Because we find that the district court improperly
assessed the admissibility of the proffered scientific expert
testimony and overlooked evidence establishing disputed issues of
fact, we reverse the summary judgment.
*
Honorable Edward S. Smith, Senior U.S. Circuit Judge for
the Federal Circuit, sitting by designation.
Facts
Beginning in 1973, Joiner worked as an electrician in the
City's Water & Light Department, a position requiring him to work
with and around the City's electrical transformers. Throughout
Joiner's employment, all of the City's transformers should have
used as a coolant a mineral oil-based dielectric fluid which was
1
free of PCBs. However, in 1983, the City discovered PCB
contamination in the dielectric fluid used in some of its
transformers. From 1983 to 1993, the City conducted tests and
concluded that almost one out of every five of the transformers
tested presented a PCB hazard.
When a transformer was in need of repair, it was Joiner's duty
to open it, drain out the dielectric fluid, bake the core of the
transformer dry of dielectric fluid,2 make repairs, refill the
transformer with fresh mineral oil dielectric fluid, and then test
the transformer. These repairs required that Joiner stick his
hands and arms into the dielectric fluid. Joiner testified that
dielectric fluid got all over him at times, that he would swallow
a small amount of dielectric fluid when it splashed into his mouth,
and that dielectric fluid had splashed into his eyes on several
occasions.
In 1991, at the age of 37, Joiner was diagnosed with lung
1
In 1978 Congress banned the production and sale of PCBs
because they "present an unreasonable risk of injury to health or
the environment." 15 U.S.C. § 2605(a)(2)(A).
2
Joiner followed a "baking out" process during which all
remaining dielectric fluid that covered the core was baked off
under intense heat for several days at a time, to the point of
smoking, until the transformer core was dry.
cancer. The Joiners' theory of the case was that while Joiner's
history of cigarette smoking and his family history of lung cancer
may have predisposed him to developing lung cancer, 3 his exposure
to PCBs and their derivatives—polychlorinated dibenzofurans
("furans") and polychlorinated dibenzodioxins ("dioxins")—served to
"promote" his small cell lung cancer.4
Defendants moved for summary judgment on the grounds that (1)
there was no admissible scientific evidence that PCBs promoted
Joiner's cancer, and (2) there was no evidence that Joiner suffered
significant exposure to PCBs, furans, or dioxins. The Joiners
responded with the depositions and affidavits of experts who
testified that PCBs alone can promote cancer and that furans and
dioxins can also promote cancer, that Joiner was exposed to PCBs,
furans, and dioxins, and that, in these experts' opinions, such
exposure was responsible for Joiner's cancer. The district court
deemed inadmissible all of the testimony presented by the Joiners'
experts and granted summary judgment for the defendants.5 In
addition, although it found Joiner was exposed to PCBs, the court
3
Joiner, who had smoked cigarettes for approximately eight
years, stopped smoking by 1981, ten years before his doctor
diagnosed his lung cancer. Joiner v. General Elec. Co., 864
F.Supp. 1310, 1312 (N.D.Ga.1994). One of Joiner's experts
testified that, notwithstanding Joiner's history of smoking,
"lung cancer is extremely rare for a thirty seven year old white
male in the United States." Id. at 1313-14.
4
One of the Joiners' experts explained that cancers often
begin with an initiated cell which may not do harm until
promoted. A "promoter" is an agent that provokes an initiated
cell to turn cancerous. Id. at 1313.
5
The district court denied both the Joiners' and the
defendants' requests for oral argument on the defendants' joint
motion for summary judgment.
asserted that there was no credible evidence that Joiner had been
exposed to furans and dioxins, and granted summary judgment against
the Joiners on the question of exposure to furans and dioxins.
Joiner v. General Elec. Co., 864 F.Supp. 1310, 1326 (N.D.Ga.1994).
On appeal, the Joiners reassert the admissibility of their
expert testimony to establish causation. They also contest the
district court's grant of summary judgment on the issue of Joiner's
exposure to furans and dioxins.
Discussion
A. Standard of Review
We review a grant of summary judgment de novo. Fane v.
Edenfield, 945 F.2d 1514, 1516 (11th Cir.1991), aff'd, 507 U.S.
761, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993). Summary judgment is
appropriate when there is no genuine issue of material fact, and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). The moving party bears the burden of showing
that there is no issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986).
A district court's ruling on the admissibility of evidence is
reviewed for abuse of discretion. Ad-Vantage Tel. Directory
Consultants, Inc. v. GTE Directories Corp., 37 F.3d 1460, 1463
(11th Cir.1994). Because the Federal Rules of Evidence governing
expert testimony display a preference for admissibility, we apply
a particularly stringent standard of review to the trial judge's
exclusion of expert testimony. See, e.g., Daubert v. Merrell Dow
Pharmaceuticals, --- U.S. ----, ----, 113 S.Ct. 2786, 2794, 125
L.Ed.2d 469 (1993); In re Paoli R.R. Yard PCB Litigation, 35 F.3d
717, 750 (3d Cir.1994). To the extent that the district court's
ruling turns on an interpretation of a Federal Rule of Evidence,
our review is plenary. Id. at 749.
B. The Admissibility of Expert Testimony
In 1923, Frye v. United States established a "general
acceptance" test that guided district courts in determining when to
admit scientific evidence. Frye, 293 F. 1013, 1014 (D.C.Cir.1923).
This test required courts to exclude any novel scientific evidence
not already grounded in a principle that had attained "general
acceptance in the particular field" in which it belonged. Id.
In 1975, the Federal Rules of Evidence ("Rules") introduced a
more liberal approach to the question of the admissibility of
scientific evidence.6 Rule 702, which specifically governs expert
testimony, provides:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.
Fed.R.Evid. 702. Notwithstanding the Rules, most courts continued
to adhere to the "general acceptance" test.
In 1993, the Supreme Court in Daubert, --- U.S. at ----, 113
S.Ct. at 2793, specifically held that the Rules superseded the Frye
"general acceptance" test. The Court made clear that the critical
concerns of Rule 702 are evidentiary reliability and relevancy.
Daubert, --- U.S. at ----, 113 S.Ct. at 2795. Thus, an expert's
bald statement that he or she is imparting "scientific knowledge"
6
Rule 104(a) provides that the court shall determine
"[p]reliminary questions concerning ... the admissibility of
evidence." Fed.R.Evid. 104(a).
does not automatically render that expert's opinion admissible. In
order to best ensure relevant and reliable testimony and exclude
"unsupported speculation," Daubert establishes a two-pronged test
which requires a district court, before it may admit scientific
testimony, to determine "whether the expert is proposing to testify
to (1) scientific knowledge that (2) will assist the trier of fact
to understand or determine a fact in issue." Id. at ----, 113
S.Ct. at 2796. This "gatekeeping" role calls for the trial judge
to make a "preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid, i.e.,
whether it is reliable; and whether that reasoning or methodology
properly can be applied to the facts in issue," i.e., whether it is
relevant to the issue involved. Id. Proffered scientific evidence
must satisfy both prongs to be admissible.
Under the first prong, evidentiary reliability, the district
court must examine the reasoning or methodology underlying the
expert opinion to determine whether it utilizes valid scientific
methods and procedures. Trial judges must evaluate scientific
processes and studies with which they may not be intimately
familiar, but be careful not to cross the line between deciding
whether the expert's testimony is based on "scientifically valid
principles" and deciding upon the correctness of the expert's
conclusions. The latter inquiry is for the jury and, therefore,
judges may not implicitly factor it into their assessment of
reliability.
Daubert suggests several factors to aid federal judges in
evaluating whether a particular scientific theory or study is
reliable: (1) its empirical testability; (2) whether the theory
or study has been published or subjected to peer review; (3)
whether the known or potential rate of error is acceptable; and
(4) whether the method is generally accepted in the scientific
community. Id. at ----, 113 S.Ct. at 2797-98. These factors are
neither exhaustive nor applicable in every case. See also Paoli,
35 F.3d at 742. Where appropriate, they serve as indicia of the
reliability of the basis of an expert's testimony.
Under the second prong, relevance, the district court must
determine whether the methodology or reasoning underlying the
expert opinion relates to the issue at hand, i.e., whether it
assists the trier of fact in understanding the evidence or a fact
in issue. Daubert, --- U.S. at ----, 113 S.Ct. at 2795. In this
regard, the Daubert Court discusses the concept of "fitness," that
is, "whether expert testimony proffered in the case is sufficiently
tied to the facts of the case that it will aid the jury in
resolving a factual dispute." Id. at ----, 113 S.Ct. at 2795-96
(quoting United States v. Downing, 753 F.2d 1224, 1242 (3d
Cir.1985)).
In analyzing the admissibility of expert testimony, it is
important for trial courts to keep in mind the separate functions
of judge and jury, and the intent of Daubert to loosen the
strictures of Frye and make it easier to present legitimate
conflicting views of experts for the jury's consideration. Frye
required that before an expert could testify, the proffered opinion
had to be generally accepted in the pertinent field. The necessity
for such broad acceptance as a condition for admissibility was
eliminated by Rule 702. The admission of scientific evidence that
might not yet be generally accepted in the field, however, is
contingent on a trial court's finding that such evidence is indeed
scientifically legitimate, and not "junk science" or mere
speculation. This gatekeeping role is simply to guard the jury
from considering as proof pure speculation presented in the guise
of legitimate scientifically-based expert opinion. It is not
intended to turn judges into jurors or surrogate scientists. Thus,
the gatekeeping responsibility of the trial courts is not to weigh
or choose between conflicting scientific opinions, or to analyze
and study the science in question in order to reach its own
scientific conclusions from the material in the field. Rather, it
is to assure that an expert's opinions are based on relevant
scientific methods, processes, and data, and not on mere
speculation, and that they apply to the facts in issue. Keeping
Daubert 's lower threshold in mind, we turn to the facts of this
case.
1. Application of Daubert to this Case—Reliability
Under the first prong of Daubert, the district court must
identify the basis of an expert's testimony and ascertain whether
the methods, procedures, and information used by the expert to
reach his or her conclusion are scientifically reliable.
a. The Basis of an Expert's Opinions
The Joiners' chief experts were Daniel T. Teitelbaum, M.D.,
and Arnold Schecter, M.D., M.P.H. The record reflects that each
opinion proffered by the Joiners' experts as scientific knowledge
was supported by the respective expert's specialized education,
years of experience, physical examination of Joiner, and
familiarity with the general scientific literature in the field, as
well as by reliance upon specific scientific studies relating to
the carcinogenic effect of PCBs.7 According to their curriculum
vitae, each appears to have a national reputation, and the district
court qualified them as experts.8 Both experts familiarized
themselves with the specifics of Joiner's history and disease, and
reviewed the medical literature they deemed pertinent. Teitelbaum,
through his affidavit and deposition testimony, set forth the
general methodology he utilized in arriving at his expert opinion:
[I conducted] a comprehensive and traditional occupational
medical assessment of Mr. Joiner.... As part of this
assessment I interviewed and examined him ... for several
hours. In addition, I reviewed his past medical records, the
data which was available about his workplace and materials
with which he worked, depositions of Mr. Joiner, and others,
and depositions of family members and co-workers about the
nature of his work. I also considered many other documents
relevant to the questions which I was asked concerning Mr.
7
Although we consider the admissibility of each expert's
testimony separately, we do see similar factors supporting the
admission of both experts' testimony, and for convenience we
often refer to them collectively.
8
The evidence indicated that Teitelbaum is co-founder of the
American Academy of Clinical Toxicology and the American Board of
Medical Toxicology. He has published more than 40 articles in
his field and teaches numerous graduate level courses in
occupational and environmental toxicology and the epidemiology of
toxic diseases. He is also a practicing toxicologist and has
repeated experience treating patients from the electrical trades.
Additionally, he has lectured on medical toxicology/epidemiology
for federal judges.
Schecter is professor of preventative medicine at State
University of New York, Binghamton, and works full time
researching the health effects of various toxic substances
encountered in the workplace. He has published over 100
articles and abstracts subjected to peer review on the
effects of workplace exposure to toxic chemicals, and has
served on the editorial boards of numerous scientific and
medical journals.
Joiner's illness and its relationship to his occupational
exposures to toxic substances.... I utilized traditional
medical assessment techniques. I also relied upon my
extensive experience with workers in the electrical trades and
my knowledge of the toxicology of the materials with which Mr.
Joiner worked. I considered the fundamental mechanisms of
toxicology and carcinogenesis as a manifestation of toxic
outcome, the biology of cancer including the biology of small
cell lung cancer, and the state of the art regarding the
testing and evaluation of toxic substances for carcinogenic
risk in humans.
Schecter also interviewed Joiner and reviewed his deposition
and affidavit testimony. He conducted a review of Joiner's medical
records, a videotape of the working conditions involving Joiner's
repair of electrical transformers, the results of PCB testing done
on the transformers, the relevant scientific literature on the
toxic effects of the substances contained in defendants' products,
and all deposed expert testimony. In arriving at his opinion,
Schecter claimed to have eliminated other potential causes of
Joiner's lung cancer to a reasonable degree of medical certainty.
In addition, each doctor utilized numerous scientific studies
and authorities. Although the district court apparently considered
only four epidemiological studies and two animal studies,
Teitelbaum referred to several additional studies which he utilized
in forming his views. Among those not mentioned by the district
court were studies by researchers Gustavsson and Hogsted, findings
of the International Program on Chemical Safety ("IPCS") World
Health Organization Criterion, and "a whole series of
[epidemiological studies] listed in [the World Health Organization]
document."
Similarly, in addition to the studies mentioned in the
district court's opinion, Schecter relied, in part, upon "recent
work such as that of Dr. George Lucier and colleagues at the
National Institute of Health," "IARC studies, International Agency
on Cancer at the World Health Organization," studies by "Dr. James
Huff of the National Institute of Health," the Zober and Theiss
studies from Germany, and also "Manz['] study on European workers."
b. Were the Methods and Procedures Underlying the Experts'
Testimony Reliable?
Likewise, the record reflects that Teitelbaum and Schecter
each utilized scientifically reliable methods and procedures in
gathering and assimilating all of the relevant information in
forming their respective opinions. Teitelbaum stated that his
methodology "has been the basis of diagnosis for hundreds of
years." Schecter described his methodology as one "usually and
generally followed by physicians and scientists." Each asserted
the general acceptance of the procedures they employed and
defendants do not challenge these claims.
Furthermore, the extensive experience and specialized
expertise of each of these experts augment the reliability of their
reasoning and methodology. While this factor is most pertinent in
deciding the separate question of whether the experts are qualified
to testify, see Fed.R.Evid. 702, it also has some bearing on the
determination of the reliability of the underlying reasoning or
methodology. Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1125 (9th
Cir.1994) (considering "expertise" to conclude that methodology
underlying expert opinions satisfied Daubert ); Downing, 753 F.2d
at 1239 (recognizing that "[t]he qualifications and professional
stature of expert witnesses ... may also constitute circumstantial
evidence of the reliability of the technique").
The assessment of reliability also involves reviewing the
basis for an expert's opinion. As previously noted, when an expert
relies on specific research to form an opinion, the district court
must ascertain whether such research is reliable. To accomplish
this, the court examines whatever evidence is proffered supporting
or criticizing the research, keeping in mind the purpose of the
inquiry, i.e., to exclude opinions based on mere speculation.
While this inquiry cannot be made without some consideration of the
quality of the research in question, the district court's focus is
a narrow one and does not encompass deciding which expert's
conclusions are better reasoned or more appealing. Nor should the
court make independent scientific judgments on the basis of
individual studies. For example, the court "rejected" the two
animal studies because (1) there were only two studies, (2) which
used massive doses of PCBs, (3) which represented a preliminary
stage of research, and (4) which tested animals, not humans. None
of these reasons is sufficient to render an expert's opinion
legally unreliable. The question is whether the expert's use of
these studies to help formulate an opinion is methodologically
sound. The number of studies is irrelevant to this inquiry. As
the Supreme Court made clear in Daubert, the fact that there are a
limited number of studies does not undermine the utility of those
studies in assisting an expert to form an opinion. See Daubert, --
- U.S. at ----, 113 S.Ct. at 2797. Furthermore, it is improper to
find research unreliable solely because it uses animal subjects.
See Paoli, 35 F.3d at 781 (finding that the district court abused
its discretion in excluding animal studies indicating probable link
between PCBs and cancer).
Opinions of any kind are derived from individual pieces of
evidence, each of which by itself might not be conclusive, but when
viewed in their entirety are the building blocks of a perfectly
reasonable conclusion, one reliable enough to be submitted to a
jury along with the tests and criticisms cross-examination and
contrary evidence would supply. As the Supreme Court said in
Daubert, "[t]hese conventional devices, rather than wholesale
exclusion under an uncompromising "general acceptance" test, are
the appropriate safeguards where the basis of scientific testimony
meets the standards of Rule 702." Daubert, --- U.S. at ----, 113
S.Ct. at 2798.
In this case, the Joiners' experts discussed the studies of
at least thirteen different researchers, and referred to several
reports of the World Health Organization that address the question
of whether PCBs cause cancer. The Joiners' experts testified that
many of these studies were conducted and analyzed to test specific
hypotheses about the relationship between PCBs and cancer, that
many have been published in reputable scientific journals, and that
they were generated and tested using the scientific method. In
ruling the Joiners' expert testimony inadmissible, however, it
appears that the district court first viewed each expert's opinions
as based only on the six studies discussed in her opinion9 and then
9
With one exception, the district court did not have before
it any of the studies it cited in its order granting defendants
summary judgment. Instead, the court apparently relied on the
very brief criticisms of these studies defendants provided in
their summary judgment motion. Joiner, 864 F.Supp. at 1325 n. 27
(noting that "[w]ith one exception, neither party has provided
the court with a copy of the studies cited in the briefs [and
accepted defendants' criticisms of the conclusions reached in those
studies, stating that "the studies simply do not support the
experts' position that PCBs more probably than not promoted
Joiner's lung cancer." Joiner, 864 F.Supp. at 1326. As Daubert
makes clear, the district court may not decide whether an expert's
opinions are correct, but merely whether the bases supporting the
conclusions are reliable. Daubert, --- U.S. at ----, 113 S.Ct. at
2797 ("The focus, of course, must be solely on principles and
methodology, not on the conclusions that they generate.").
Instead of viewing the bases of an expert's opinion as a
whole to screen out mere speculation, the district court assessed
only a portion of the studies relied upon by each of the Joiners'
experts, and then excluded the testimony because it drew different
conclusions from the research than did each of the experts.
Ultimately, the court should satisfy itself as to the legal
reliability of proffered expert testimony, leaving the jury to
decide the correctness of competing expert opinions.
2. Application of Daubert to this Case—Relevance
The second prong of Daubert requires the court to determine
whether the "testimony "assist[s] the trier of fact to understand
the evidence or to determine a fact in issue,' " by examining
whether the "reasoning or methodology [underlying the testimony]
can be applied to the facts in issue." Daubert, --- U.S. at ----,
113 S.Ct. at 2795-96. The district court found that the experts'
that] the court, for the most part has had to rely on the
excerpts from the studies that the parties have provided in their
briefs"). It further appears that the court did not consider
Teitelbaum's testimony as to why the studies supported his
opinion that PCBs cause cancer.
opinions did not "fit" the facts in the case because "the opinions
[linking PCBs to cancer] are inextricably bound up with the
experts' assumption that Joiner was exposed to furans and dioxins,"
Joiner, 864 F.Supp. at 1320, an assumption the court deemed
unfounded. Our review of the record indicates, however, that there
appears to a genuine factual dispute as to whether PCB's alone can
cause cancer, and that this issue was inappropriate for summary
judgment. Although the terms "PCBs," "dioxins," and "furans" often
appeared together in each expert's proffered testimony, and at
times the Joiners' experts asserted that it can be assumed furans
and or dioxins were present in the City's PCB contaminated
transformer fluid, it does not necessarily follow that each
expert's opinion that PCBs caused Joiner's cancer was contingent
upon his exposure to furans or dioxins. During his deposition,
Teitelbaum testified that:
[t]here's sufficient information on PCBs. I brought the IPCS
World Health Organization criterion because it's just hot off
the press, and the summary ... indicates that as of 1987, IARC
had concluded that the evidence for carcinogenicity in
laboratory animals is sufficient. This is the latest piece of
information, and there is no reason to doubt that, and they
also concluded that PCBs are probably carcinogenic for humans.
Schecter similarly testified that "PCBs alone also cause cancer" in
explaining that PCBs can initiate, as well as promote, cancer.
Thus, in terms of Joiner's claim that PCBs alone can cause cancer,
it becomes immaterial whether there were furans and dioxins in the
fluid.
Similarly, with reference to the theory that Joiner was
indeed exposed to furans and dioxins, it appears that a genuine
dispute likewise exists over whether furans and dioxins could have
been present in the dielectric fluid. For example, both of the
Joiners' experts testified that furans can be generated when PCBs
are exposed to fires and lightning, and that furans and dioxins are
often found together with PCBs. Schecter stated that "[i]t is well
documented that the heating of or burning of PCBs will create both
the [furans] and deadly dioxins." Teitelbaum testified that furans
would inevitably result given the fact that the City's transformers
had suffered fires and lightning strikes on several occasions.
Teitelbaum testified during his deposition that "one simply has to
look at the chemistry of the situation and what's known about PCBs
manufactured in this period and assume that there was some furan
present, that there may have been some dioxin present, depending on
the particular fire and circumstances." Id. at 1321.
Defendants sought to neutralize the impact of the Joiners'
evidence by establishing that neither furans nor dioxins would have
been produced unless the transformer fluid exceeded a certain
temperature. Defendants' expert, Dr. John F. Brown, Jr., testified
that the exposure of PCBs to temperatures of 300 degrees centigrade
for several days could generate furans, but that it was unlikely
the City would have allowed the temperature ever to reach 300
degrees during a bake-out because of potential damage to the
transformer core. Brown did not comment, however, on the
temperatures that may have been reached during an accidental
transformer fire which, because it is not planned by the City, does
not involve intentional damage to the transformer core. Nor did
the defendants provide evidence of what the temperatures in these
fires might have been, or establish that the temperatures, in fact,
never exceeded 300 degrees. The defendants never succeeded in
rebutting the conclusions of the Joiners' experts by either
establishing a threshold temperature for the conversion of furans
or dioxins in a PCB solution, or presenting any direct evidence of
the actual temperatures attained during either the bake out process
or accidental fires. In contrast, Teitelbaum, when asked if he was
able to "determine the temperature created from the stadium lights
that were used to bake the transformer coils," replied, "[Joiner]
says it was hot enough for it to smoke, and oil smokes at around
700 degrees, 800 degrees [centigrade]." In addition, while
defendants' expert, Dr. Thomas O. Rouse, testified that it would be
"quite unlikely" for a lightening strike to cause the production of
furans from PCBs, Id. at 1317 n. 12, Teitelbaum testified in his
affidavit that "Mr. Joiner was directly involved in the salvage of
PCB containing transformers which had been involved in a lightning
strike, [and that] a lightning strike and overheating of a
transformer in the presence of oxygen in the dielectric fluid,
inevitably produces [furans]."
For all of the foregoing reasons, the testimony of plaintiff's
experts was erroneously excluded and summary judgment should not
have been granted. Accordingly, we reverse the summary judgment
and remand for proceedings consistent herewith. REVERSED and
REMANDED.
BIRCH, Circuit Judge, specially concurring:
I concur in this opinion because it properly emphasizes the
role of the district court as "gatekeeper." The role of the trial
judge, properly following the Daubert mandate, is to ensure that
the conclusions reached by the scientific experts have some minimal
level of reliability and probative value. This determination is
accomplished by establishing that the predicate principles and
methodology relied upon by the experts are valid and that they can
be applied to the facts at issue. The sufficiency of the evidence
and the weight of the evidence, however, are beyond the scope of
the Daubert analysis. Whether the conclusions advanced from the
stated premises in fact follow and the persuasiveness of those
conclusions in the ultimate resolution of competing opinions, are
questions appropriately left to the finder of fact. The trial
court, nevertheless, retains its responsibility of properly
instructing the jury on burden of proof and ultimately entering
judgment in appropriate circumstances—all after the evidence has
been tested through cross-examination and rebuttal evidence has
been introduced.
In discharging the Daubert mandate, the trial court can
enhance the record for appellate review by appointing an expert,
under Fed.R.Evid. 706, to assist the court in evaluating proffered
scientific evidence. Augmentation of the record with the testimony
of a competent, independent and philosophically neutral Rule 706
expert focused upon evaluating the reliability of the proffered
expert evidence will likely promote a more comprehensive and
adequate ruling by the trial court. As complex scientific and
technical evidence becomes more commonplace, in this ever-advancing
computer age, the need for the trial court generalist to seek
expertise in discharging Daubert responsibilities becomes
increasing evident and compelling.
SMITH, Senior Circuit Judge, dissenting:
I respectfully dissent because the majority improperly applies
Daubert v. Merrell Dow Pharmaceuticals, --- U.S. ----, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993), and does not adequately clarify the
roles of the expert, the trial court and the appellate court. The
following analysis is based on a few basic ideas. As a
"gatekeeper," the trial court must sift through expert testimony to
decide not only whether an expert may testify, but what portion of
the expert's testimony is admissible. A single expert may offer
several opinions to reach his ultimate conclusion, and each opinion
must be admissible under Daubert. Further, an expert's testimony
does not "assist" the trier of fact if the expert does not explain
the steps he took to reach his conclusion. We should not require
the trier of fact to accept blindly the expert's word to fill the
analytical gap between proffered "scientific knowledge" and the
expert's conclusions. Therefore, the trial court "gatekeeper" has
broad discretion to decide whether a leap of faith across the
analytical gap is so great that, without further credible grounds,
the testimony is inadmissible.
I. Standard of Review
The majority states that, although we review the trial court's
admissibility rulings for abuse of discretion, "we apply a
particularly stringent standard of review to the trial judge's
exclusion of expert testimony" and "our review is plenary" over the
trial court's interpretation of evidence rules. Because
understanding the scope of appellate review helps define the role
of the trial court, I believe we should follow other circuits and
present a more precise explanation of the standard of review. See,
e.g., Cook v. American Steamship Co., 53 F.3d 733, 738 (6th
Cir.1995) (Three standards in reviewing admissibility of expert
opinion: (1) trial court's factfinding is reviewed for clear
error; (2) trial court's ruling whether opinion is scientific
knowledge is question of law requiring plenary review; and (3)
trial court's ruling whether opinion assists the trier of fact is
reviewed for abuse of discretion); Bradley v. Brown, 42 F.3d 434,
436-37 (7th Cir.1995) (Plenary review of whether trial court
applied Daubert framework, but trial court's findings not disturbed
unless manifestly erroneous.).
In applying a "particularly stringent" review, we do not
change the threshold of review, but conduct a searching review of
the record (i.e., take a "hard look") while maintaining the proper
standard of review. See, In re Paoli R.R. Yard PCB Litigation, 35
F.3d 717, 749-50 (3d Cir.1994) (give a " "hard look' (more
stringent review)" to decide whether the trial court abused its
discretion), cert. denied, --- U.S. ----, 115 S.Ct. 1253, 131
L.Ed.2d 134 (1995). This court already suggested such a "hard
look" where it remanded a case in light of Daubert and instructed
the trial court to make specific factfindings to facilitate
appellate review. United States v. Lee, 25 F.3d 997, 998 (11th
Cir.1994). Under this "hard look," I offer for clear guidance
review terminology that is firmly established in the jurisprudence
of this and other circuits. Whether the trial court properly
applied Rule 702 by following the framework set forth in Daubert is
a question of law over which this court exercises complete and
independent review. See, Peterson v. Atlanta Housing Authority,
998 F.2d 904, 912 (11th Cir.1993) ("The district court's conclusion
of law is subject to complete and independent review by this
court.") (quoting, In re Sure-Snap Corp., 983 F.2d 1015, 1017 (11th
Cir.1993)); Bradley, 42 F.3d at 436-37. I suggest the term
"complete and independent" as being more precise and accurate than
the ubiquitous "de novo" where the review is in fact the first one
ever conducted. "De novo" carries a connotation of repetition, as
in a "trial de novo" after a matter has previously been tried. To
suggest that an appellate court is conducting a "new" review of the
trial court's conclusions of law is less than accurate when in fact
those conclusions have never before been reviewed. The trial
court's preliminary factfinding during a Rule 104(a) hearing to
determine the admissibility of expert opinion is reviewed for clear
error. See, Elston v. Talladega County Bd. of Ed., 997 F.2d 1394,
1405 (11th Cir.1993) ("We review the district court's findings of
fact for clear error. A finding is clearly erroneous when although
there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.") (quoting Anderson v. Bessemer City,
470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985))
(internal quotations omitted); Cook, 53 F.3d at 738. In applying
the Daubert framework, the trial court's ruling on whether the
expert opinion is (1) reliable (i.e., scientific knowledge grounded
in the methods and procedures of science) and (2) relevant (i.e.,
"fits" the facts of the case) is reviewed for abuse of discretion.1
See, Hibiscus Associates Ltd. v. Board of Trustees, 50 F.3d 908,
917 (11th Cir.1995) ("A judge has broad discretion to exclude
expert testimony, and his action will be upheld unless it is
1
Those circuits addressing Daubert have shown similar
deference to the trial court's admissibility determinations.
See, e.g., Pedraza v. Jones, 71 F.3d 194, 197 (5th Cir.1995)
(trial court's ruling drug addict's expert testimony inadmissible
is reviewed for abuse of discretion); Gier v. Educational
Service Unit No. 16, 66 F.3d 940, 942 (8th Cir.1995) (trial
court's ruling psychologist testimony inadmissible reviewed for
"clear abuse of discretion"); Deimer v. Cincinnati Sub-Zero
Products, Inc., 58 F.3d 341, 344 (7th Cir.1995) ("[W]e apply a
deferential standard of review ... A decision to allow expert
testimony is within the broad discretion of the trial judge and
is to be sustained ... unless manifestly erroneous.") (internal
quotations omitted); Cook v. American Steamship Co., 53 F.3d
733, 738 (6th Cir.1995) ("[W]hether the proffered expert opinion
"will assist the trier of fact to understand the evidence or to
determine a fact in issue,' is a relevancy determination and
therefore one we review for abuse of discretion."); United
States v. Dorsey, 45 F.3d 809, 814 (4th Cir.1995) ("[E]ven under
the Daubert analysis, a trial judge has a great deal of
discretion in deciding whether to admit or exclude expert
testimony.") (citing United States v. Bynum, 3 F.3d 769, 773
(4th Cir.1993) ("The [Daubert ] Court emphasized that it was
prescribing a "flexible' rule, one committed, as are most
questions of admissibility of evidence, to the discretion of the
district courts."), cert. denied, --- U.S. ----, 114 S.Ct. 1105,
127 L.Ed.2d 416 (1994)), cert. denied, --- U.S. ----, 115 S.Ct.
2631, 132 L.Ed.2d 871 (1995); American & Foreign Insurance Co.
v. General Electric Co., 45 F.3d 135, 137 (6th Cir.1995) ("A
trial court has broad discretion in the matter of the admission
or exclusion of expert evidence, and ... is to be sustained
unless manifestly erroneous.") (internal quotations omitted);
Bradley v. Brown, 42 F.3d 434, 436-37 (7th Cir.1995) ("We first
undertake a de novo review of whether the district court followed
the framework set forth in Daubert [, and if so,] we will not
disturb the district court's findings unless they are manifestly
erroneous."); In re Paoli, 35 F.3d 717, 749-50 (3d Cir.1994) (a
"hard look" at trial court's exercising its discretion); United
States v. Rincon, 28 F.3d 921, 923 (9th Cir.1994) (admissibility
of expert opinion on eyewitness identification reviewed for abuse
of discretion), cert. denied, --- U.S. ----, 115 S.Ct. 605, 130
L.Ed.2d 516 (1994); and United States v. Muldrow, 19 F.3d 1332,
1337 (10th Cir.1994) ("We review a trial court's admission of
evidence under an abuse of discretion standard."), cert. denied,
--- U.S. ----, 115 S.Ct. 175, 130 L.Ed.2d 110 (1994).
manifestly erroneous.").
II. Admissibility of Expert Testimony
After presenting a thorough review of the Daubert standard,
the majority errs by first applying the reliability prong of
Daubert to the experts' opinions as a whole, and then applying the
relevancy prong. This approach treats all the experts as offering
only one opinion leading to the ultimate conclusion that
transformer dielectric fluids promoted Mr. Joiner's small cell lung
cancer. However, each expert is actually offering several opinions
leading to that ultimate conclusion. For example, the experts
offer opinions that (1) furans and dioxins were present and (2)
furans and dioxins promoted Mr. Joiner's cancer. Each of these
assertions is a separate opinion which must meet the Daubert
standard, regardless of whether the assertions are given by the
same or different experts. As the Paoli court stated,
[T]he requirement of reliability, or "good grounds," extends
to each step in an expert's analysis all the way through the
step that connects the work of the expert to the particular
case ... [A]ny step that renders the analysis unreliable under
the Daubert factors renders the expert's testimony
inadmissible.
Paoli, 35 F.3d at 743, 745 (emphasis omitted).
The majority admonishes the trial court for not "viewing the
bases of an expert's opinion as a whole." However, sifting through
the expert's testimony is a crucial "gatekeeping" function that not
only requires the trial court to decide which experts may testify,
but also requires the trial court to decide what the experts may
testify about (i.e., the trial court must separate the wheat from
the chaff). Litigants may not offer all of an expert's testimony
so long as they can search and find some portion that is
admissible. Similarly, an expert may not bombard the court with
innumerable studies and then, with blue smoke and slight of hand,
leap to the conclusion. Instead, the expert must explain how the
opinion drawn from each study is acceptable under Daubert (i.e.,
how the study is methodologically grounded and "fits" the facts of
the case), else the expert cannot testify about that particular
study.
A. Exposure to PCBs, Furans and Dioxins
Although finding there is a genuine dispute whether Mr. Joiner
was exposed to PCBs, the trial court found insufficient evidence
that Mr. Joiner was exposed to furans or dioxins. The trial court
dismissed Mr. Joiner's assertion that furans were created from PCBs
in fire conditions because, although there was evidence of fire and
other "hot" conditions, Mr. Joiner failed to show that conditions
reached the requisite temperatures in this case (i.e., "fit").
Joiner v. General Electric Co., 864 F.Supp. 1310, 1317-18
(N.D.Ga.1994).
The majority concludes the trial court committed reversible
error by overlooking a minor passage from Dr. Teitelbaum's
affidavit that provides specific evidence of "fit": (1) the
transformer's were smoking which requires temperatures of 700 to
800 degrees centigrade and (2) some transformers were struck by
lightning which inevitably produces furans. The majority further
suggests the trial court's ruling was erroneous because the
defendants presented no evidence that the fires did not reach the
requisite temperature. However, I disagree and I am not prepared
to reverse the trial court on this issue because it is Mr. Joiner
who has the burden of proving admissibility. Daubert at ----, 113
S.Ct. at 2796 n. 10 (citing Bourjaily v. United States, 483 U.S.
171, 175-76, 107 S.Ct. 2775, 2778-79, 97 L.Ed.2d 144 (1987)); see
also, Deimer, 58 F.3d at 345 (The expert "had the responsibility to
apply his analysis to the facts of this case."); American &
Foreign Insurance Co., 45 F.3d at 139 ("[T]he burden is on the
[party seeking to admit expert testimony] to persuade this court
that the testing was reliable and supported by raw data."). In
making its ruling, the trial court sifted through such overwhelming
evidence that it inevitably overlooked the passage from Dr.
Teitelbaum's affidavit. More importantly, Mr. Joiner himself
failed to disclose this passage notwithstanding his burden of
proving admissibility or his knowing the case hinged on such
evidence. Mr. Joiner failed to cite this or any similar passage on
appeal. Indeed, this passage would have been forever lost had it
not been for the diligent, searching eye of the majority. I am not
prepared to place such a burden on either the trial or appellate
courts. Similarly, I am not prepared to encourage litigants to
inundate the courts with raw data and force the courts to process
the data to determine why certain evidence is admissible. The
litigants and their experts should know their evidence better than
anyone—they should be their own advocates for its admission.
I would also affirm the trial court on the issue of exposure
to dioxins. The trial court properly discarded treatise excerpts
as inadmissible hearsay because they were not offered through
expert testimony. The trial court did not abuse its discretion in
discarding testimony that dioxins can be formed from Pyranol
because there was no evidence that Pyranol was or may have been
present in this case (i.e., "fit"). Nor did the trial court abuse
its discretion in excluding testimony that burning PCBs produces
dioxins where the testimony did not reference any supporting
studies (i.e., grounded in science). Finally, the trial court did
not abuse its discretion in finding that expert testimony
concerning a specific incident "has little probative value given
the evidentiary deficits in this case." Joiner at 1319.
B. Causation—Promotion of Cancer
The trial court gave two alternative grounds for granting
summary judgment on the issue of causation (i.e., whether Mr.
Joiner's exposure to dielectric fluid promoted his cancer): (1)
the experts' testimony did not "fit" because they assumed Mr.
Joiner was exposed to furans and dioxins and (2) the experts did
not show how the studies they relied on "fit" this case. Regarding
the former ground, I am not prepared to reverse the trial court due
to Mr. Joiner's failing to disclose the critical passage regarding
the temperature of the transformers which would have provided the
"fit" required to admit evidence about furan and dioxin exposure.
Moreover, I would affirm the trial court on the latter ground
because it did not abuse its discretion in finding the experts
failed to show how the proffered studies "fit" this case.
1. Mice Studies.—The trial court found the experts' reliance
on mice studies was questionable because (1) there were only two
studies; (2) the studies used massive doses; and (3) the studies
yielded only preliminary results. Joiner at 1323. The trial court
excluded the studies because Mr. Joiner did not respond to these
concerns, but merely "proceed[ed] as if the only issue is whether
animal studies can ever be [proper]." Joiner at 1324 (emphasis
added). The majority opinion apparently adopts Mr. Joiner's
argument, stating that "it is improper to find research unreliable
solely because it uses animal subjects." However, this ignores the
trial court's concern that the experts have not demonstrated how
these mice studies "fit" this particular case.
In discussing "fit," the Supreme Court stated,
The study of the phases of the moon ... may provide valid
scientific "knowledge" about whether a certain night was dark,
and if darkness is a fact in issue, the knowledge will assist
the trier of fact. However ( absent creditable grounds
supporting such a link ), evidence that the moon was full on
a certain night will not assist the trier of fact in
determining whether an individual was unusually likely to have
behaved irrationally on that night.
Daubert at ----, 113 S.Ct. at 2796 (emphasis added). In explaining
the concept of "fit," the Paoli court stated,
[Expert] testimony will be excluded if it is not scientific
knowledge for the purposes of this case.... [I]n order for
animal studies to be admissible to prove causation in humans,
there must be good grounds to extrapolate from animals to
humans, just as the methodology of the studies must constitute
good grounds to reach conclusions about the animals
themselves.
Paoli, 35 F.3d at 743 (emphasis in original).
The trial court's ruling was not that animal studies are
inadmissible per se, but that Mr. Joiner's general response that
experts generally rely on animal studies fails to show the
reliability and "fit" of these particular animal studies. Joiner
at 1324 n. 25. The trial court's concern is that the proffered
studies (1) were on mice, not humans; (2) were of substantially
higher doses of PCBs than Mr. Joiner's exposure; (3) resulted in
a different form of cancer than Mr. Joiner's; (4) yielded only
preliminary results and (5) were not accompanied by other studies
(there were only two studies). Because Mr. Joiner failed to
address the latter two concerns, the trial court found the studies
were unreliable. Regarding the other concerns about "fit", the
trial court found that Mr. Joiner did not present "creditable
grounds for supporting" the link between these mice studies and Mr.
Joiner's cancer.2
It is incumbent on the proponent of scientific evidence to
fill the analytical gap between a proffered study and the
particular facts of the case (i.e., "fit"). Daubert at ---- n. 10,
113 S.Ct. at 2796 n. 10 (citing Bourjaily v. United States, 483
U.S. 171, 175-76, 107 S.Ct. 2775, 2778-79, 97 L.Ed.2d 144 (1987));
see also, Deimer, 58 F.3d at 345 (The expert "had the
responsibility to apply his analysis to the facts of this case.");
American & Foreign Insurance Co., 45 F.3d at 139 ("[T]he burden is
on the [party seeking to admit expert testimony] to persuade this
court that the testing was reliable and supported by raw data.").
The trial court exercises its discretion to determine whether such
a showing has been made, weighing several factors including the
"liberal thrust" toward admitting expert evidence, the adversarial
system's ability to scrutinize admitted evidence, and the powerful
influence of expert opinion.3 Daubert at ----, ----, 113 S.Ct. at
2
Had this law suit involved mice exposed to high doses of
PCBs who developed some type of lung cancer, the "fit" would have
been self-evident. However, the relationship between the studies
and the facts of this case is much more tenuous.
3
In this regard, the Daubert Court stated,
Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of
2794, 2798. Where no other scientific evidence is offered to fill
the analytical gap, the trier of fact is required to take the
expert simply on his word, placing blind faith in his expertise.
However, if the trial court finds the expert testimony requires too
great a leap of faith across the analytical gap, it may properly
request good grounds to bridge the gap before admitting the
testimony. See, Turpin v. Merrell Dow Pharmaceuticals, Inc., 959
F.2d 1349, 1360-61 (6th Cir.1992) (Regarding animal studies used to
show the cause of birth defects, the court found "[t]he analytical
gap between the evidence presented and the inferences to be drawn
on the ultimate issue ... is too wide. Under such circumstances,
a jury should not be asked to speculate on the issue of
causation."), cert. denied, 506 U.S. 826, 113 S.Ct. 84, 121 L.Ed.2d
47 (1992). This is not too onerous a request because the expert
should certainly have reasons for drawing his conclusions from the
study, else his testimony is inadmissible as the "subjective belief
or unsupported speculation" that Daubert requires the trial court
"gatekeeper" to screen out. 4 Daubert at ----, 113 S.Ct. at 2795.
proof are the traditional and appropriate means of
attacking shaky but admissible evidence.... Expert
evidence can be both powerful and quite misleading
because of the difficulty in evaluating it. Because of
this risk, the judge in weighing possible prejudice
against probative force under Rule 403 ... exercises
more control over experts than over lay witnesses.
Daubert at ----, 113 S.Ct. at 2798.
4
Common law precluded an expert from testifying at all about
an ultimate fact in issue, relegating his role to guiding the
trier of fact up to the ultimate fact without taking the final
step. Although an expert may now testify to an ultimate fact,
this permissiveness certainly does not permit an expert to
testify solely to an ultimate fact without guiding the trier of
fact to that conclusion. For example, an expert could not give a
Therefore, the trial court did not abuse its discretion in ruling
the mice studies testimony inadmissible where Mr. Joiner completely
failed to respond to the trial court's concerns.
2. Epidemiological Studies.—The trial court disregarded the
experts' reliance on epidemiological studies because "in every case
... the studies are either equivocal or not helpful" and "simply do
not support the experts' position that PCBs more probably than not
promoted Joiner's lung cancer." Joiner at 1324, 1326 (emphasis in
original). The majority reverses the trial court on this issue,
alleging the trial court improperly decided whether the experts'
conclusions were correct instead of limiting its analysis to
whether the studies were reliable. I respectfully disagree; the
trial court's concern is with "fit," not whether the experts are
correct.
The Paoli court recognized that the distinction between
focusing on an expert's methodology instead of his conclusion "has
only limited practical import." Paoli at 746. The court
explained,
When a judge disagrees with the conclusions of an expert, it
will generally be because he or she thinks there is a mistake
at some step in the investigative or reasoning process of that
expert.... [A] challenge to "fit" is very close to a
challenge to the expert's ultimate conclusion about the
particular case, and yet it is part of the judge's
admissibility calculus under Daubert.
one sentence testimony, "Mr. Joiner's lung cancer was promoted by
his exposure to dielectric fluid, you can take my word for it."
Nor would he save his testimony by adding, "I've heard of studies
that show saccharine causes cancer in laboratory animals." In
order to "assist" the trier of fact, the expert must further
explain his reasoning by testifying about what studies he relies
on to form his opinion, how reliable are the studies, and how the
studies relate to this particular case.
Paoli at 746. By directing attention away from the trial court's
choice of terminology and toward its actual analysis, I conclude
that the trial court did not abuse its discretion in ruling each
study inadmissible.
The trial court found the Bertazzi capacitor manufacturers
study inadmissible because its results showed "no grounds" for
linking exposure to lung cancer, and the specific excerpts relied
on by the experts merely show the "plausibility," not probability,
that exposure could cause cancer. Joiner at 1324 n. 26. These
concerns alone are not dispositive because an expert may analyze a
study and draw different conclusions than the study. However, an
expert should have reasons for differing with the study or for
finding that the study supports his conclusion notwithstanding
language in the study to the contrary. Because Mr. Joiner failed
to respond and provide supporting grounds, the trial court did not
abuse its discretion in ruling this evidence inadmissible.
The trial court ruled the Zack & Musch Monsanto study
inadmissable where the study itself stated that the results were
not "statistically significant." Joiner at 1325. The trial court
ruled the Norwegian cable manufacturers study inadmissible because
it "never mentions PCBs," involves mineral oil exposure, and the
study itself concludes that "[f]urther follow up ... studies ...
are needed before any firm conclusions may be drawn." Joiner at
1325. The trial court also ruled the Yusho accidental toxic
exposure study inadmissible because the study was a "preliminary
report," the study involves persons exposed to furans and dioxins,
and Mr. Joiner's own expert testified that the study "is not very
convincing as the Japanese lifestyle is different ... [it is]
suggestive but not convincing." Joiner at 1326 (quoting Deposition
of Dr. Teitelbaum). As with the Bertazzi study, the trial court
did not abuse its discretion where Mr. Joiner failed to respond to
the trial court's concerns and provide further grounds for relying
on these studies.
III. Conclusion
The trial court properly applied Daubert and did not abuse its
discretion in ruling certain expert testimony inadmissible. Based
on these rulings, there is insufficient evidence on the issue of
causation. Therefore, I would affirm the trial court's granting
summary judgment in favor of defendants. Moreover, I caution
against using the majority's approach that applies each Daubert
prong to the testimony as a whole. I would approve the trial
court's step-by-step approach which properly anticipates a single
expert as offering more than one opinion to support his ultimate
conclusion.