Petition for Writ of Certiorari — Morin v. United States (No. 07-823)

Supreme Court, U.S.

ce FILED

07-823 DEC 10 2007

ion OFFICE OF THE CLE

IN THE

Supreme Court of the Gnited States

VICKY MORIN,

Petitioner,

Vz

UNITED STATES OF AMERICA; AND DOES I - X,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Alan S. Levin, MD, JD

Counsel of Record

Post Office Box 4703

987 Wander Way

Incline Village, NV 89450

(775)831-5603

Attorney for Petitioner

‘Wasi SEAT ONCE RENTALS T NEON, SOO C A IE REN EES RIERA, HOT REA., <2 RSET RG BAC. ARSENE ENTERS ENE MORK TS

LEGAL PRINTERS, Washington DC @ 202-747-2400 e legalprinters.com

QUESTION PRESENTED

Whether the Ninth Circuit Court of Appeals in

Morin v. United States No. 05-16702 (9th Cir.

07/24/2007) violated fundamental fairness and the

Plaintiffs Fourteenth Amendment Due Process and

Equal Protection rights by affirming the District

Court’s arbitrary and capricious order granting

Defendant’s Motion for Summary Judgment which

was based on most egregious irrational reasoning?

ll

TABLE OF CONTENTS

Page

QUESTIONS PRES eee eeikcncacccscccoaseees

TABLE OF AUT TERORR ieee atv adiesskassnsecseces ili

OPINIONS BORLA cccgoe ERE shabahavsaseessescess. 1

JURISDICTION ....icccsnseiee eam Nceeceaseeses: “eee |

CONSTITUTIONAL PROVISION .................0.c0000- Pe eteiss l

STATEMENT OF Tai Ge ia aridssascaseesnccsccsse. 3

ARGUMENT o.cccccscescunll eI beisaedensascsceeses 6

REASONS FOR GRANTING THE PETITION ..................-. 13

CONCLUSION occ. cccaccepeseeet aE eakGececceassesses 19

APPENDIX

District Court Decision 7/IS/OS .c.c.c0. ccc c cece ee .. A-1

Ninth Circuit Decision 7/2907 .......0..00.0 000 0cee A-25

Order Denying Rehearing W1 1/07 ............0.... A-28

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TABLE OF AUTHORITIES

Page

CASES

ADAMS V. COOPER INDUSTRIES, INC. AND

MCGRAW EDISON COMPANY CIVIL ACTION

Fel), GTS cdkicnictecs ce ee 15

ALLGOOD, ET AL., V. GENERAL MOTORS CORP.,

CASE NO. 1:02-cv-1077-DFH-TAB, U.S.

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF INDIANA, INDIANAPOLIS DIVISION,

SP TR Fs Fo cenincecstescpepcecncsaraecstbnecias 16, 17

BOLLING V. SHARPE 347 U.S. 497 (1954) .....0..0.0.000.2.. 1

CLAUSEN V. M/V NEW CARISSA, 339 F.3D 1049,

TODS (Or CO, TD wcicescsccacxecitcsncesacocusiccssecss 13, 13

DAUBERT V. MERRELL DOW PHARMACEUTICALS,

Inc., 509 U.S. 579, 113 S.

CT. 2786, 125 L. ED. 2D 469

CRED oxcrctentcceeeee ae 2, 4, 5, 10, 11, 13, 18

DICKERSON V. SECRETARY OF DHHS, 35 FED.

CAs. Te, Geek CR! . chaccieecece kun Ce ned sin 2

GALAZ V. U.S_A. ET AL. (04-15970) ....... jaeasacaaeienaa 17

KENNEDY V. COLLAGEN CORP., 161 F.3D 1226,

1229-30 (9 CIR. 1998)............... IPR ATS CAN es 13

KNIGHT V. KIRBY INLAND MARING INC, 482

F.3D 347 (5 Cir. 03/19/2007) .................. cian Oy 2

MORIN V. UNITED STATES CV-N 03-0503

HDM-RAM (JULY 15, 2005) ..........cc0cccccccscescccceseesess 1

MORIN V. UNITED STATES NO. 05-16702 (9™ Cir.

Bin ty ps § RDN e an orn One ee yer nE TE 1

NATURAL RESOURCES. V. U.S., 966 F.2D 1292,

ee rote iceecerea een eee connate 2

VILLAGE OF WILLOWBROOK V. OLECH, 528 U.S.

ac arctececcese das ci aga icaseranitis eleeacaiaeue 2

SNYDER V. U.S.A. ETAL. (08-15187). .........ccccsseeeceeee 17

SUTERA V. PERRIER GROUP OF AMERICA INC. 986

F.SUPP. 655, 667 (D.MASS. 1997) ..............00.. 6,13

STATUTES

Br eee EF soars coshexkensececsansasnmraparasacntacadarooss 1,6

RULES

ee ee ees I ER Sic calcoincananaheinitode ehadseoiasaumtinns 5

gig Fs, GERI a RON en atone ay nas: 1

FOURTEENTH AMENDMENT........ 1,2, 8, 9, 10, 13, 15, 47

I BI pai exeatencnae ean aait asnariecndneacioauen eee nie 4

REGULATIONS

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OPINIONS BELOW

A case dispositive Motion for Summary

Judgment was granted against petitioner in Morin v.

United States, CV-N 03-0503 HDM-RAM on July 15,

2005. (App. A-1) This ruling was appealed in Morin

v. United States, No. 05-16702 (9th Cir. July 24,

2007) This disposition is not appropriate for

publication and is not precedent except as provided

by 9th Cir. R. 36-3. The opinion of the three judge

panel of the Court Of Appeals affirming the District

Court Ruling was filed on July 24, 2007. (App. A-25)

JURISDICTION

The opinion of the Court Of Appeals was filed

on July 24, 2007. The Court Of Appeals denied a

petition for rehearing and rehearing en banc on

September 11, 2007. (App. A-28) The Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION

The Fourteenth Amendment rights of Due

Process and Equal Protection are accorded parties in

Federal Actions through their Fifth Amendment due

process rights. Bolling v. Sharpe 347 U.S. 497 (1954)

Under “newer” equal protection jurisdiction

claims will lie “where the plaintiff alleges that she

has been intentionally treated differently from

others similarly situated and that there is no

2

rational basis for the difference in treatment”.

Village of Willowbrook v. Olech, 528 U.S. 562 J 11.

Rational reasoning is the very foundation the

principles of fundamental fairness and of the Due

Process and Equal Protection rights in our judicial

system. No judge, either Federal or State, has the

discretion to use an irrational basis as_ the

foundation of an opinion. “The requirement to

provide appropriate findings and an analysis is

especially applicable to expert testimony. Expert

medical testimony cannot be dismissed without

providing a thorough, rational explanation for doing

so because to do otherwise would be tantamount to

arbitrary and capricious decision-making.” Dickerson

v. Secretary of DHHS, 35 Fed.Cl. 593, 601 (1996)

This petition for certiorari involves a major,

national judicial policy issue of exceptional

importance. There is at present an epidemic of

judicial rulings that are based upon reasoning so

egregious that it defies rational explanation. These

rulings are absurd on their faces. The absence of a

rational connection between the facts found and the

choice made makes them arbitrary and capricious

and grossly erroneous. Natura/ Resources. v. U.S.,

966 F.2d 1292, 97, (9" Cir. ’92).

The cited Daubert rulings are based on

irrational reasoning so arbitrary and capricious as to

offend principles of fundamental fairness and the

command of the Due Process and Equal Protection

Clauses of the Fourteenth Amendment. These

rulings prohibit competent, qualified experts from

giving reasonable and rational opinions regarding

carcinogenic substances.

STATEMENT OF THE CASE

On February 27, 2003, the Petitioner, Vicky

Morin (hereinafter referred to as MORIN), filed a

SF95 claim under the Federal Tort Claims Act

(FTCA claim) against the United States Department |

of the Navy (hereinafter referred to as USN) seeking >

compensation for her brain cancer caused by

exposure to jet fuel and jet exhaust while being

employed at the Fallon Naval Air Station

(hereinafter referred to as NAS Fallon). In this

claim, MORIN identified Dr. Gary C. Ridenour, her

diagnosing and treating physician, as her witness.

The USN failed to answer the administrative claim

and this litigation ensued with a complaint filed in

the United States District Court for the District of

Nevada on September 12, 2003, against the United

States of America (hereinafter referred to as USA).

USA answered the complaint.

On December 31, 2003, the parties agreed to a

scheduling order which required, inter alia, the

disclosure of experts by May 18, 2004. On March 25,

2004, the parties stipulated to an order extending

deadlines established in the prior order. The new

deadline for disclosing experts was July 19, 2004.

MORIN had previously disclosed Dr. Ridenour as an

expert witness in the FTCA Claim in 2003 and, on

July 3, 2004, MORIN submitted the expert witness

affidavit of Dr. Gary C. Ridenour to USA in rebuttal

to the USA’s Motion To Dismiss and/or For

Summary Judgment. On August 16, 2004, MORIN

submitted the expert, rebuttal report of Dr. Ridenour

to USA.

On September 2, 2004, the USA sought a

dismissal or summary judgment asserting two

separate grounds. First, that MORIN’s claim was

barred by the statute of limitations. Second, that

there was no reliable scientific evidence showing

that jet fuels are capable of causing the brain

plasmacytoma (a rare variant of multiple myeloma)

that MORIN suffered. In its motion, the USA also

argued that MORIN failed to disclose her expert

witness in a timely manner.

MORIN filed a Motion To Strike the USA’s

Expert Witness Report by Drs. Wysner and Scott on

grounds that it does not satisfy the requirements of

Rule 702 or the U.S. Supreme Court’s guidelines

established in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786,

125 L. Ed. 2d 469 (1993). and the USA responded by

stating that Drs. Wysner and Scott’s opinions

considered the question of general causation rather

than specific causation and their methodologies were

appropriate for that purpose. The motion was

denied on February 23, 2005.

On February 5, 2005, the District Court

denied the USA’s Motion to Dismiss without

Prejudice.

5

On February 22, 2005, MORIN moved for

Summary Judgment on the issues of general and

specific causation and in It’s Reply in Support of

Summary Judgment attached journal articles

produced by Dr. Gary Ridenour. The USA moved for

Summary Judgment, inter alia, on the ground that

general causation is not established.

After lengthy litigation on procedural issues

and in the absence of a full and fair Daubert

hearing, on June 14, 2005 cross motions for

Summary Judgment were heard.

On July 15, 2005 Judge Howard D. McKibben

denied Plaintiffs Motion for Summary Judgment

and Defendants' Motion to Dismiss on Statute of

Limitations Grounds. The Judge granted

Defendants' Motion to Exclude Plaintiffs Sole

Expert Causation Witness on "“Daubert' grounds

based solely on that expert's affidavit and in the

absence of direct or cross examination and ignoring

Dr. Ridenour’s deposition testimony. The Judge also

granted Defendants’ Motion to Exclude Plaintiff's

Sole Expert Causation Witness as a Sanction Under

Fed.R.Civ.Proc. 37. This was done without proper

notice and without allowing the Plaintiff to cure the

Defendants’ perception of error. In addition, the

Court could show no prejudice what-so-ever to the

Defendant. The Court could show no intentional

conduct what-so-ever on the part of the Plaintiff

which could legitimately cause the Defendants'

perception of error. The Court ignores the numerous

stipulations to enlarge deadline times entered into

by the Plaintiff for the convenience of the Defendant.

The District Court then dismissed the Complaint

6

with prejudice as to all Defendants. (App. A-1)

An appeal to the Ninth Circuit was timely filed.

The Ninth Circuit Court of Appeals three

judge panel’s decision was filed on July 24, 2007

affirming the District Court’s Opinion. (App. A-25)

The Court Of Appeals denied a petition for rehearing

and rehearing en banc on September 11, 2007. (App.

A-28) This petition is in response to that decision.

The Court has jurisdiction under 28 U.S.C. §

1254(1).

ARGUMENT

The clear and plain language of the District

Court's order (App A) in this case states verbatim:

“A medical degree or training does not

confer any magical quantities upon those

experts for both Plaintiff and Defendant

who testified on the causation issue”.

Sutera v. Perrier Group of America Inc. 986

F.Supp. 655, 667 (D.Mass. 1997) (treating

physician was an_ oncologist and

hematologist but lacked expertise to testify

as to causal link between benzene and

leukemia).

The District Court order, affirmed by the

Appeals court is based on egregiously irrational

reasoning and violates fundamental fairness.

In Sutera the plaintiffs treating physician

who “lacked expertise” was Dr. Robert Jacobson, a

world renowned expert in benzene _ induced

leukemia. Like Dr. Ridenour, Dr. Jacobson is a

Currently Licensed constantly peer reviewed busy

medical doctor.

Dr. Jacobson is a Board Certified Internist

and a Board Certified Hematologist and Oncologist,

Dr. Robert Jacobson, is a world renowned expert in

benzene induced leukemia. Dr. Jacobson came to

this causation opinion in the course and scope of his

day to day practice of medicine. As a _ licensed

practicing physician, Dr. Jacobson’s non-litigation

general and_ specific causation opinions § are

constantly peer reviewed by the United States

Health and Human Services Agency for Medicare

Reimbursement, peer reviewed by the United States

Drug Enforcement Agency for controlled substance

prescriptions, peer reviewed by his State Medical

Board for general and specific causation opinions

and treatment protocols, peer reviewed by the

hospitals in which he has admitting privileges for

general and_ “specific causation opinions and

treatment protocols, peer reviewed by _ the

Universities in which he has appointments for his

professional opinions and teaching policies.’ To opine

* Dr. Jacobson is also the Medical Director of The Helen and

Harry Gray Cancer Institute, Good Samaritan Medical Center,

West Palm Beach, Florida, Dr. Jacobson is also the Director of

the Bone Marrow and Stem Cell Transplantation Program at

the same institution. Dr. Jacobson is a Consulting Professor of

the Department of Medicine, Duke University Medical Center

that Dr. Jacobson “lacked expertise to testify as to

causal link between benzene and leukemia” is

egregiously irrational and absurd on its face. To find

that Dr. Ridenour, also a currently licensed

practicing physician with extensive experience in

cancer diagnosis and treatment, is unqualified to

testify for the same reason is also egregiously

irrational and violates fundamental fairness, is

arbitrary and capricious. Fundamental fairness is

the essence of Fourteenth Amendment Due Process

and Equal Protection rights.

The Order goes on to say,

Dr. Ridenour opined that Morin's

plasmacytoma (a rarely occurring variant

of multiple myeloma) was caused by

exposure to jet fuel and/or jet engine

exhaust, but he did not conduct any

independent research to support his

conclusion that jet fuel and jet engine

exhaust were generally capable of causing

plasmacytoma, nor did the studies he

in Durham, North Carolina, and a former Professor of Medicine

and Pathology as well as Co-Director of the Hematologic

Oncology Service at the Vincent T. Lombardi Cancer Center,

Georgetown University. Dr. Jacobson was also the Interim

Chairman of the Department of Medicine, Georgetown

University School of Medicine.

(http://www.findcancerexperts.com/aboutus.medboard.html)

9

cited provide sufficient support for

that principle. See Shewit Bezabeh et al.,

Does Benzene Cause Multiple Myeloma?

An Analysis of the Published Case-

Control Literature, 104 (Supp. 6) Envtl.

Health Persp. 1393, 1397 (Dec. 1996)

("[BJenzene exposure is unlikely to be a

causal agent for multiple myeloma.").

(App. A-25)

This statement also has no rational! basis and

is violative of the principles of fundamental fairness

as well as the Plaintiffs Fourteenth Amendment

rights.

The records are replete with the fact that Mrs.

Morin was a heavy cigarette smoker. Prior to the

discovery of the true cellular character of Mrs.

Morin’s’ brain tumor (plasmacytoma/multiple

myeloma not associated with cigarettes and

positively associated with motor exhaust exposure),

Dr. Ridenour and Mrs. Morin’s other treating

physicians considered, in their’ differential

diagnoses, a variety of cigarette and benzene

induced cancers such as metastatic lung cancer,

malignant meningioma, and metastatic breast

cancer (a common hormonally associated cancer).

It was only after learning of the true histology

of the tumor, that Dr. Ridenour altered his

differential diagnosis and came to the opinion that it

was caused by the jet exhaust to which Mrs. Morin

was literally bathed on a regular basis. Mrs. Morin

also reported in her Federal Tort Claims Act

complaint and testified in her deposition that she

10

was literally bathed in jet fumes and fuel while

working at the approach end of the main runway of

NAS Fallon.

Given that benzene is a major component of

cigarette smoke it is clear from his records, reports

and deposition that Dr. Ridenour, initially

considered benzene induced tumors in his initial

differential diagnosis but after learning of the true

histologic nature of her tumor he changed his

differential diagnosis and no longer considered

benzene as a cause of Mrs. Morin’s malignant

plasmacytoma.

Dr. Ridenour provided the Court with studies

that diesel exhaust is associated with Mrs. Morin’s

tumor and this was corroborated by Defendants’ own

experts Drs. Whysner and Scott of July 16, 2004

linking multiple myeloma to tractor engine exhaust.

Diesel exhaust and jet engine exhaust are virtually

identical.

Considering the above scientific and legal

analysis, it is clear that the District Court opinion

(affirmed by the Appeals Court) used egregiously

irrational reasoning as a basis for its statement

expressed above. The use of egregiously irrational

reasoning in their opinion violates the principles of

fundamental fairness and Mrs. Morin’s Fourteenth

Amendment Equal Protection and Due Process

rights.

Another statement based upon irrational

reasoning in the Ninth Circuit Order in this case is

“Additionally, although differential diagnosis is

11

generally accepted as a_= scientifically valid

methodology supporting admissible testimony under

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993), Dr. Ridenour's expert report did not

show whether or how he applied differential

diagnosis in determining the cause of Morin's

plasmacytoma. See Clausen v. M/V New Carissa,

339 F.3d 1049, 1058 (9th Cir. 2003).” (App. A-1)

This statement has no rational basis and

violates fundamental fairness because Dr. Ridenour

is a licensed medical doctor with a busy medical

practice. Medical doctors use differential diagnosis to

make both general and specific causation opinions on

a day to day basis. These causation opinions are

constantly peer reviewed. Dr. Ridenour is a medical

doctor who holds a current State of Nevada license

in good standing, a current license from the U.S.

Drug Enforcement Agency in good standing, a

current license in good standing from the U.S.

Department of Health and Human Services. Dr.

Ridenour is a member in good standing of the

medical staff at several hospitals in Fallon, NV and

was the former Director of the Department of

Emergency Medical Services in the City of Saint

Louis. As such Dr. Ridenour’s causation opinions are

under constant peer review by the U.S. Department

of Health and Human Services, the U.S. Drug

Enforcement Agency, the State of Nevada Medical

Board, and the Staff review committees of the

hospitals at with he holds privileges. The records

reflect that Dr. Ridenour made his causal opinion on

Mrs. Morin’s tumor in the course and scope of his

12

professional medical practice. It is simply

irrational to reason that such a busy, peer reviewed

professional doesn’t use differential diagnosis in his

medical practice.

Judge McKibben goes on to write that Dr.

Ridenour, who has been Mrs. Morin's personal

physician for over 20 years, failed to "even mention

the use of differential diagnosis and his report does

not illustrate that he followed this methodology."

This is simply an irrational statement. As

legal research is to the practice of law, differential

diagnosis is a foundational element to the practice of

medicine. As it is taken for granted that a judge or

lawyer uses legal research as a tool in his/her

assessment of a case, it is taken for granted that a

treating physician uses differential diagnosis in

his/her assessment of a case. Indeed Dr. Ridenour, in

his affidavits and his deposition states clearly that

he considered Mrs. Morin's heavy cigarette smoking

as the most probable cause of her brain cancer. He

entertained the diagnosis of metastatic lung cancer,

metastatic breast cancer and benign or malignant

meningioma in his differential diagnosis.

It was not until the histopathology revealed a

malignant plasmacytoma which is unrelated to

cigarettes and is related to diesel fume exposure,

that he formed his opinion on causation. This is a

clear and incontestable demonstration that Dr.

Ridenour used differential diagnosis as a foundation

for his opinion. The Trial Court’s ruling that Dr.

Ridenour didn’t use differential diagnosis in his

causation opinion is based on irrational reasoning.

13

The Court’s use of irrational reasoning in

its opinion is violative of the principles of

fundamental fairness as well as Mrs. Morin’s

Fourteenth Amendment Due Process rights.

Indeed, in Clausen, supra the Appeals Court

states it previously accepted an expert’s testimony

because it was, “based on [the expert's] knowledge of

the connection between collagen and_ various

autoimmune disorders, combined with [the expert's]

observation of [the Plaintiff's] injuries and her

medical history and laboratory tests”. Kennedy v.

Collagen Corp., 161 F.3d 1226, 1229-30 (9th

Cir.1998) This is on point with the case at bar. The

record is clear that, Dr. Ridenour in his reports and

his deposition reveals that he has knowledge of the

connection between motor exhaust fumes and

multiple myeloma, combined with Dr. Ridenour’s

observation of Mrs. Morin’s injuries and her medical

history and laboratory tests.

REASONS FOR GRANTING THE PETITION

Although the Daubert series of cases are

intended to increase the quality of expert witness

testimony, there is an epidemic of Daubert decisions

that are based on irrational reasoning and therefore

lacking in a rational basis. In addition to the

irrational findings in Sutera v. Perrier a recent

decision in Knight v. Kirby Inland Marine Inc, 482

F.3d 347 (5th Cir. March 19, 2007) the court ruled

that the Plaintiffs’ expert testimony was flawed

because each and every one of fifty (50) peer

reviewed medical journal articles cited as supporting

the expert’s opinion were irrelevant to the case. The

14

expert in this case was. Barry S. Levy, M_.D.,

M.P.H. Adjunct Professor of Community Health,

Tufts University.

Dr. Levy has devoted his entire career to

public health -- as a practitioner, educator,

scientist, consultant, program director, and

organizational leader. Most of his work has

been in environmental and occupational

health. He has been a_— medical

epidemiologist for the Centers for Disease

Control; a professor at the University of

Massachusetts Medical School, where he

founded and directed its occupational

health program; and an_ international

health program director. He has worked in

more than 20. countries, primarily

developing countries of Africa and Asia and

countries in Central and Eastern Europe.

Dr. Levy has written more than 100

published articles and book chapters and

edited 14 books and monographs, including

three editions of a textbook on work-related

disease and its prevention; a book on

international perspectives on environment,

development, and health; and, most

recently, the book War and Public Health.

He currently serves on the boards of APHA

(American Public Health Association), the

International Commission on Occupational

Health, and the Alliance to End Childhood

Lead Poisoning. (http://www.solutions-

site.org/artman/publish/article_81.shtml)

15

The idea that a Professor at one _ of

America’s finest medical schools who has published

so extensively in the peer reviewed medical

literature would submit fifty (50) irrelevant peer

reviewed medical journal articles to a Court of Law

is not simply irrational, it is absurd on its face. As

such the ruling in Anight has no rational basis and

violates the principles of fundamental fairness and

the Plaintiffs Fourteenth Amendment Rights.

Again, in the Sixth Circuit a world renowned

expert in dioxins, Dr. William Sawyer testified that

the four Plaintiffs' dioxin congener blood levels were

above the 95th percentile of the normal range

distribution in the general population. Adams v.

Cooper Industries, Inc. and McGraw Edison

Company Civil Action No. 03-476-JBC "The

plaintiffs’ claim that, in comparing the bellweather

plaintiffs’ blood dioxin levels with the CDC data, Dr.

Sawyer analyzed whether the plaintiffs’ blood levels

exceeded the 95th percent confidence interval ("CI")

surrounding the geometric mean for the appropriate

age group, as reported in the NHANES data and

Millette."(Hon. Jennifer B. Coffman Memorandum

Opinion and Order in Adams v. Cooper Industries,

Inc. and McGraw Edison Company Civil Action No.

03-476-JBC p. 2)

Based on these comparisons, Dr. Sawyer

concluded that "the results of the blood dioxin

analyses ... reveal 11 of the 29 PCDDs/Fs and

coplanar PCBs as reported by the laboratory were

16

abnormally elevated in comparison to CDC

reference ranges." Id p.3 Judge Coffman opined that

Sawyer's scientific reasoning was flawed.

The court finds the reasoning of A//good

(Allgood, et al., v. General Motors Corp.,

Case No. 1:02-cv-1077-DFH-TAB, U.S.

District Court for the Southern District of

Indiana, Indianapolis Division, September

18, 2006] both persuasive and applicable to

Dr. Sawyer. Dr. Sawyer essentially opines

that congener levels above the mean are

“abnormal.” As noted by the District Court

in Allgood, this method would permit an

expert to allege that roughly one-half of the

United States population — exhibits

abnormal levels of dioxins, furans, and

PCBs. Such a definition of abnormality

would deprive the term of all meaning.

Although above-average levels of these

chemicals may be a cause for medical

concern (as Dr. Sawyer claims), this does

not mean that such levels are indicative of

unusual or abnormal exposures. Dr.

Sawyer's failure to account for the

statistical spread or range of the NHANES

data is a _ severe problem with his

methodology. Id p. 3

Indeed Her Honor acknowledges that Dr.

Sawyer is calling only those results above the 95

percentile as abnormal:

17

"The plaintiffs attempt to distinguish

Allgood on the grounds that the study relied upon by

the expert in that case did not purport to establish

any statistical boundaries or percentiles and that the

expert also failed to utilize the 95% CI, as Dr.

Sawyer has done here." Id p. 4

And yet Her Honor still rules that Dr.

Sawyer's science is flawed.

In her ruling the Judge contends that 50% of

the world's population could be in the 95th percentile

of the geometric mean distribution curve. This

routinely used statistic guarantees to within 95%

certainty that the value is not “normal”. It is obvious

that 50% of the world's population could not be

included at levels statistically significantly above

average as documented by the 95% CI. This is

simply a mathematical impossibility and an

irrational basis for the Judge’s ruling in this case

violates the principles of fundamental fairness and

the Plaintiffs Fourteenth Amendment Rights.

As mentioned in the pleadings, the facts and

circumstances of this case are closely tied to those of

the children of Fallon where the incidence of acute

lymphoblastic leukemia is 2000+ times higher than

unexposed children. Two other cases, Snyder v.

U.S.A. et al. (03-15187), Galaz v. U.S.A. et al. (04-

15970) have been filed involving the same or similar

facts and circumstances. The Fallon leukemia

cluster is a "biological gold mine" which will provide

invaluable scientific information on the basic biology

18

of childhood cancer.. The discovery in this

series of cases has, so far, revealed vast areas of

environmental contaminants which, more probably

than not, are responsible for the leukemia cluster.

Further discovery will uncover valuable scientific

evidence which will lead to an understanding of the

basic genetics of adult and childhood cancer. It

would serve as a severe scientific setback to cut this

litigation short based upon bizarre, nonsensical

reasoning because it chills the ardor of legitimate

scientists to further investigate the environmental

causes of this disaster.

The situation in this litigation is not unusual.

Numerous times scientists and physicians find

judges impugning their methodology using totally

nonsensical reasoning. This practice not only chills

the ardor of real scientists (as opposed to litigation

specialists) to engage in the legal system but it also

violates the very foundation of our legal system,

fundamental fairness.

In this petition, Mrs. Morin asks the Court for

one single, simple remedy. That is to remand the

case back to the District Court and to provide her

with the right to have her experts as well as the

defense experts subjected to vigorous direct and

cross examination in a full and fair Daubert hearing

in front of a rational, fair, impartial, disinterested

judge.

In addition to being the attorney of record, the writer is also

an expert in environmentally induced childhood malignancies

19

A vigorous direct and cross examination of

all experts in this case will substantially advance

medicine, science and the law.

CONCLUSION

For the foregoing reasons, a writ of certiorari

should be granted.

Respectfully submitted,

Alan S. Levin, MD, JD

Counsel of Record

Post Office Box 4703

987 Wander Way

Incline Village, NV 89450

(775)831-5603

Attorney for Petitioner

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

[DATE STAMP]

U.S. DISTRICT COURT

DISTRICT OF NEVADA

ENTERED & SERVED

JUL 19 2005

CLERK, U.S. DISTRICT COURT

BY /s/ DEPUTY

VICKY MORIN, CV-N-03-0503-HDM (RAM)

Plaintiff,

Vv. ORDER

UNITED STATES OF AMERICA

and DOES, I-X, inclusive,

Defendants.

Plaintiff Vicky Morin ("plaintiff") filed this

action against the United States alleging that

exposure to jet fuel caused her to develop a malignant

plasmacytoma of the brain. This case is currently

before this court on cross-motions for summary

judgment. (See (#38,40)). Defendant, the United

States, argues that it is entitled to summary judgment

because the suit is untimely under the Federal Tort

Claims Act and because plaintiff has failed to establish

a causal link between jet fuel and cancer in regard to

her negligence claim. (See (#38)). Plaintiff argues that

she is entitled to summary judgment on the issues of

general and specific causation because she has

established a causal link between the jet fuel and the

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cancer. (See (#40)). Because plaintiff has failed to

establish a causal link between jet fuel and cancer,

and because causation is a necessary element of

plaintiffs negligence claim, defendant’s motion for

summary judgment is granted.

I. Background

Plaintiff was employed by the Allen Corporation

from 1982 to 1986. During her time with the company

she worked in a building located at the end of an active

runway at the U.S. Naval Air Station in Fallon,

Nevada (“NAS Fallon”). Plaintiff alleges that she was

“literally bathed in jet fuel routinely dumped by Navy

jet aircraft on their approach to landing.” (See (#2) at

{ 6). Plaintiff contends that she was exposed to

constant fumes in the air from the jet fuel. (See (#40)

Ex. 3 at 3). Throughout her period of employment with

the Allen Corporation, plaintiff experienced skin

irritations, blisters, and was sick all the time. (See

(#40) Ex. 4 at 102-05). In her deposition, plaintiff

testified that she believed that exposure to the jet fuel

caused her health problems. (See id.).

Plaintiff also claims that between 1978 and

1980, her home was situated under the flight path for

planes taking off and landing at the NAS Fallon and

that her home was “daily bathed” with jet fuel. (See

id.). Similarly, plaintiff maintains that in 1981 she

moved to a ranch that was on the flight path for two

bombing ranges and during this period her home was

regularly bathed in ported jet fuel. (See id.).

Around January 2000, plaintiff began

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experiencing blurred vision, disorientation, and

discovered a “soft spot” on her temple. (See (#40) at

157-60). Over the next several months, the soft spot

continued to grow and, in July and August 2000, one

of plaintiff's eyes started bulging out. (See id. at 158-

60).’

In November 2000, piaintiff went to see her

primary care physician, Dr. Ridenour. On November

22, 2000, Dr.Ridenour requested a brain scan because

of the swelling she was experiencing around her eye.

(See (#40). The scan revealed a large mass in the

orbital area. Dr. Ridenour told plaintiff that she had a

tumor that was probably a meningioma, a tumor of the

membranes enclosing the brain. (See (#40) Ex. 4 at

259-60).

On November 29, 2000, plaintiff consulted with

a neurosurgeon, Dr. Joseph Walker. (See (#40) Ex. 5).

Plaintiff told Dr. Walker that, about fifteen months

earlier, she had first noticed that skin on her head

sounded like leather when she scratched it. After

reviewing the MRI and CT, Dr. Walker confirmed that

plaintiff had a brain tumor. On February 23, 2001,

plaintiff underwent surgery to remove the tumor. After

the surgery, the tumor was identified as a malignant

plasmacytoma rather than a meningioma.

‘During the summer of 2000, news regarding the leukemia

cluster in Fallon became widespread. Plaintiff conducted her own

internet research during this time and found several sites which

attributed certain cancers to exposure to benzene. Plaintiff began

developing a website about the leukemia cluster and its potential

relationship to benzene.

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On February 27, 2003, plaintiff presented an

administrative claim to the United States Navy, (see

(#40) Ex. 7), alleging that exposure to the jet fuel

caused her tumor. On September 16, 2003, after six

months of non-action, plaintiff filed the present suit

against the United States.

II. Standard of Review

Summary judgment “shall be rendered

forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine

issue as tu any material fact and that the moving party

is entitled to judgment as a matter of law.” Fed.

R.Civ.P. 56©). The burden of demonstrating the

absence of a genuine issue of material fact lies with

the moving party, and for this purpose, the material

lodged by the moving party must be viewed in the light

most favorable to the nonmoving party. Adickes v. S.H.

Kress & Co., 398 U.S. 144, 157 (1970); Martinez v. City

of Los Angeles, 141 F.3d 1373, 1378 (9" Cir. 1998). A

material issue of fact is one that affects the outcome of

the litigation and requires a trial to resolve the

differing versions of the truth. Lynn v. Sheet Metal

Workers Int'l Ass’n, 804 F.2d 1472, 1483 (9" Cir. 1986);

S.E.C. v. Seaboard Corp., 677 F.2d 1302, 1306 (9" Cir.

1982). If the parties file cross-motions for summary

judgment the court must consider each party’s motion

separately and determine whether that party is

entitled to a judgment under Rule 56. In making these

determinations, the court must evaluate the evidence

offered in support of each cross-motion. Fair Housing

Council of Riverside County, Inc. v. Riverside Two, 249

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F.3d 1132, 1136-37 (9" Cir. 2001).

Once the moving party presents evidence that

would call for judgment as a matter of law at trial if

left uncontroverted, the respondent must show by

specific facts the existence of a genuine issue for trial.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986). “[T]here is no issue for trial unless there is

sufficient evidence favoring the nonmoving party for a

jury to return a verdict for that party. If the evidence

is merely colorable, or is not significantly probative,

summary judgment may be granted.” Jd. at 249-50

(citations omitted). “A mere scintilla of evidence will

not do, for a jury is permitted to draw only those

inferences of which the evidence is reasonably

susceptible; it may not resort to speculation.” British

Airways Board v. Boeing Co., 585 F.2d 946, 952 (9"

Cir. 1978); see also Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 596 (1993) (“[I]n

the event the trial court concluded that the scintilla of

evidence presented supporting a position is insufficient

to allow a reasonable juror to conclude that the

position more likely than not is true, the court remains

free ... to grant summary judgment.”) Moreover, “[ilf

the factual context makes the non-moving party’s

claim of a disputed fact implausible, then that party

must come forward with more persuasive evidence

than otherwise would be necessary to show there is a

genuine issue for trial.” Blue Ridge Insurance Co. v.

Stanewich, 142 F.3d 1145, 1149 (9" Cir. 1998) (citing

Cal. Architectural Bldg. Products, Inc. v. Franciscan

Ceramics, Inc., 818 F.2d 1466, 1468 (9"" Cir. 1987)).

Conclusory allegations that are unsupported by factual

data cannot defeat a motion for summary judgment.

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WN

Taylor v. List, 880 F.2d 1040, 1045 (9 Cir. 1989).

Finally, if the nonmoving party fails to present

an adequate opposition to a summary judgment

motion, the court need not search the entire record for

evidence that demonstrates the existence of a genuine

issue of fact. See Carmen v. San Francisco Unified Sch.

Dist., 237 F.3d 1026, 1029-31 (9" Cir. 2001) (holding

that “the district court may determine whether there

is a genuine of fact, on summary judgment, based on

the papers submitted on the motion and such other

papers as may be on file and specifically referred to

and facts therein set forth in the motion papers”). The

district court need not “scour the record in search of a

genuine issue of triable fact,” but rather must “rely on

the nonmoving party to identify with reasonable

particularity the evidence that precludes summary

judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9""

Cir. 1996) (quoting Richards v. Combined Ins. Co., 44

F.3d 247, 251 (7 Cir. 1995)). “[The nonmoving party’s]

burden to respond is really an opportunity assist the

court in understanding the facts. But ifthe nonmoving

party fails to discharge that burden — for example by

remaining silent — its opportunity is waived and its

case wagered.” Guarino v. Brookfield Township

Trustees, 980 F.2d 399, 405 (6" Cir. 1992).

III. Statute of Limitations under the FTCA

Plaintiff filed her administrative claim with the

United States Navy on February 27, 2003. (Sce (#40)

Ex. 7). the United States argues that it is entitled to

summary judgment because plaintiff wes aware of the

information on which she based her claims more than

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two years prior to February 27, 2003 (See (#40) at 9).

The Federal Tort Claims Act requires that a

claim against the United States must be submitted to

the appropriate federal agency “within two years after

such claim accrues.” 28 U.S.C. § 2401 (b); Herrera-Diaz

v. United States Dept. of Navy, 845 F.2d 1534, 1536 (9"

Cir. 1988). In cases involving latent diseases, medical

malpractice, and wrongful death, the ninth Circuit has

applied a “discovery rule” to the accrual of 28 U.S.C. §

2401 (b). See Winter v. U.S., 244 F.3d 1088, 1090 (9

Cir. 2001); Rosales v. United States, 824 F.2d 799, 805

(9 Cir. 1987). Thus, a claim accrues when the

“plaintiff has discovered, or in the exercise of

reasonable diligence should have discovered, both its

injury and its cause.” Davis v. United States, 642 F.2d

328, 331 (9 Cir. 1981).

It is undisputed that plaintiff knew that she had

a brain tumor prior to February 27, 2001. (See (#40)

Ex. 5-6) (Dr. Walker’s diagnosis of a tumor on

November 29, 2000). Additionally, in January 2000,

plaintiff told her son that she knew that she had a

brain tumor. (See (#40) Ex. 4 at 157). However,

conflicting evidence exists as to whether plaintiff knew

or reasonably should have know the cause of her

injury.

Plaintiff argues that she could not have possibly

known that her cancer was caused by jet fuel prior to

her surgery, on February, 2001, because of the nature

of the tumor. Plaintiff admits that she is a heavy

smoker and was smoking as much as three packs a day

during the relevant time period. When she was

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diagnosed with a meningioma a reasonable inference

could be drawn that she and her doctors would have

attributed the tumor to her chronic smoking. (See

(#40) Ex. 4 at 259-60). When the tumor was removed

on February 27, 2001 it was found to be a malignant

plasmacytoma, a type of cancer not generally

associated with smoking. Conversely, factual evidence

exists to show that plaintiff had all the information on

which she based her claim that exposure to jet fuel

caused her ailment before that date. Plaintiff testified

that throughout her period of employment with the

Allen Corporation, she experienced skin irritations,

blisters, and was sick all the time. (See (#40) Ex. 4 at

102-05). Moreover, she testified that she believed that

her exposure to the jet fuel caused these ailments. (See

id.). Additionally, plaintiff was acutely aware of the

widespread coverage of the Fallon leukemia clusters

having created a website that dealt with benzene,

leukemia, and the cluster, and she discussed the

possible link between benzene and myelomas with her

treating physician. (See id. at 170-71).

The conflicting evidence on when plaintiff

reasonably should have know the cause of her injury

creates a general issue of material fact that ultimately

must be determined by the trier of fact prior to the

court deciding whether this action is time-barred.

Accordingly, summary judgment is inappropriate as to

the statute of limitations defense.

IV. Causation

Plaintiff has sued the United States alleging

that the negligent dumping of jet fuel at NAS Fallon

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cause plaintiffs brain tumor. The only evidence

proffered to establish general and specific causation is

the plaintiffs untimely filed expert report, from her

treating physician, Dr. Ridenour. (See (#40) Ex. 12).

The United States argues that Dr. Ridenour’s report

should be excluded for two reasons. First, Dr.

Ridenour’s report is unreliable and inadmissible under

Federal Rule of Evidence 702 and Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Second, plaintiff failed to disclose Dr. Ridenour’s

report by the July 19, 2004, the deadline for disclosing

expert witnesses. Plaintiffhas filed her own motion for

summary judgment (#38) on the issues of general and

specific causation. Plaintiff argues that there is no

evidence that jet fuel can cause a malignant

plasmacytoma and she is entitled to judgment as a

matter of law.

A. Admissibility of Dr. Ridenour’s Report

In admitting expert testimony, Federal Rule of

Evidence 702 requires that two preliminary

determinations be made by the trial court. First, the

proffered witness be qualified as an expert by reason

of his or her knowledge, skill, experience, training, or

education. See Fed. R. Evid. 702. Second, the proffered

expert’s opinion must be based on scientific, technical,

or other specialized knowledge, that will assist the

trier of fact to understand the evidence or determine a

fact in issue. Id.

1. Qualifications

The question of whether the witness is

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sufficiently qualified as an expert is a matter to be

decided by the court. See Fed. R. Evid. 702, see also

Fed. R. Evid. 104(a). In assessing whether an expert

has the appropriate qualifications, the court considers

whether the expert offers some special knowledge,

skill, experience, training, or education on the subject

matter. Fed. R. Evid. 702; United States v. Hankey,

203 F.3d 1160, 1168 (9° Cir. 2000). If an individual is

not qualified to render an opinion on a particular

question or subject, it follows that his opinion cannot

assist the trier of fact with regard to that particular

question or subject. See Whiting v. Boston Edison Co.,

891 F.Supp. 12, 24 (D.Mass. 1995) (“Just as a lawyer

is not by general education and experience qualified to

give an expert opinion on every subject of the law, so

too a scientist or medical doctor is not presumed to

have expert knowledge about every conceivable

scientific principle or disease”).

Plaintiffs proffered expert is Gary C. Ridenour,

M.D., plaintiffs treating physician. (See (#40) Ex. 12).

Dr. Ridenour is a licensed physician who has practiced

in Fallon, Nevada for over 20 years (/d.). He has

diagnosed and treated over a thousand patients for

cancer, at least fifty of whom had multiple myeloma.

(Id.). He has knowledge of the plaintiffs health for

almost 20 years and was the first to diagnose her with

a brain tumor which proved to be a malignant

plasmacytoma. (/d.).

This court is cognizant that the resolution of the

causation in many cases turns on the testimony of

treating physicians. See Mason v. Texaco, Inc., 741

F.Supp. 1472, 1496 (D.Kan. 1990), affd in part, 948

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F.2d 1546 (10 Cir. 1991), cert. denied, 504 U.S. 910

(1992); Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378,

1384 (4 Cir. 1995) (permitting treating physician to

render an opinion that combining alcohol with

therapeutic doses of acetaminophen caused liver

disease in light of “medical community’s daily use of

the same methodologies in diagnosing patients”).

However, as many courts have found, certain issues of

causation “do not lend themselves to the same

certainties as do diseases such as asbestosis, whose

cause is readily attributable to a particular agent or

class of agents.” Mason, 741 F.Supp. at 1497 (“A

medical degree or training does not confer any magical

qualities upon those experts for both plaintiff and

defendant who testified on the causation issue.”);

Suttera v. Perrier Group of America, Inc., 986 F.Supp.

655, 667 (D.Mass. 1997) (treating physician was

oncologist and hematologist but lacked expertise to

testify as to causal link between benzene and

leukemia). This is such a case. Without scientifically

reliable evidence, plaintiff cannot show a causal

connection between jet fuel and a malignant

plasmacytoma sufficient to submit this case to the

trier of fact.

Dr. Ridenour has not expertise in toxicology,

epidemiology, risk-assessment, or environmental

medicine. Although he is a physician with expertise in

diagnosing and treating cancer, the ability to diagnose

and to treat a disease is substantially different from

the expertise required to assess its genesis to a

reasonable degree of scientific certainty. Id. at 667.

Moreover, Dr. Ridenour has not done any original

research or published any papers about jet fuel or its

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potential cancerous effects. Dr. Ridenour may very

well be qualified as an expert with regard to the

general practice of medicine and the ability to diagnose

and treat cancer. But this court must assess whether

he is qualified to testify as to the causal link between

jet fuel and cancer. Based upon his report, his

qualifications, and experience, this court finds that Dr.

Ridenour has failed to establish sufficient expertise as

to that particular question. Nevertheless, this court

will assess his report to determine its admissibility

under Rule 702 and Daubert.

2. Dr. Ridenour’s Report

Plaintiffhas introduced Dr. Ridenour’s report to

establish generally that jet fuel can cause a malignant

plasmacytoma and to establish specifically that the jet

fuel at NAS Fallon caused plaintiffs cancer. The

following is the complete text of Dr. Ridenour’s report.

Summary of My Assignment and Opinions

I have been asked to consider

whether the exposure to jet fuel exhausts

have caused Mrs. Vicky Morin's

malignant plasmacytoma. My answer is

yes. I base my opinion on my training,

education, experience, the medical

record, my care and treatment of Mrs.

Morin and my own personal experience

with Mrs. Morin's job and the Naval Air

Station (NAS) Fallon and its aircraft. I

have also read the Report of John

Whysner, MD, PhD, DABT, and Samuel

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J. Scott, MD MPH, FACOEM written for

the defense in this case. I have been

asked to briefly comment on _ the

shortcomings of that report.

My Qualifications, Training and Experience

I am currently licensed physician

practicing medicine in Fallon, Nevada for

over 20 years. I have diagnosed and

treated over 1000 cancers in my own,

personal patients. At least 50 of these

were multiple myeloma. I have followed

Mrs. Morin for over 20 years and it was I

who initially diagnosed her brain tumor

which proved to be a malignant

plasmacytoma. Please see my attached

curriculum vita.

The Whysner Scott Report

[have reviewed the Whysner Scott

Report and find that I (disagree with

their conclusions on the carcinogenity of

raw, unburned fuel. Unburned motor

fuels of all types have been linked to

various cancers including multiple

myeloma.™’ In addition, the doctors

completely ignore the fact that Mrs.

Morin was also exposed to large amounts

of jet engine exhaust from the Naval

Aircraft operating at NAS Fallon. I can

attest to this fact since I saw her on

several occasions when she came to my

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office from her workplace at NAS Fallon.

Her clothes were damp and literally

reeking of the stench of jet exhaust.

It is well accepted that engine

exhausts are a known cause multiple

myeloma.™ The defense experts in their

own reports admit that tractor engine

exhausts are associated with multiple

myeloma.™ Tractors burn both kerosene

(jet fuel) and diesel which is closely

related chemically to jet fuel.”

Conclusion

It is my opinion; to a reasonable

degree of medical certainty that Mrs.

Morin's malignant plasmacytoma was

caused by her exposure to jet fuel

exhaust emanating from jet aircraft

operating at NAS Fallon.

Compensation and Testimony in last 4 years

I have been paid $3,000 for this

report. My hourly fee for testimony as a

medical expert in depositions and court

testimony is $500.00 per hour. I have

testified in several medical malpractice

cases in last 4 years.

fnl Studies have shown an increased

prevalence in patients who have been

exposed to fuel oil products, agricultural

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workers, miners, and sheet metal workers.

http://www.21stcenturyoncolcgy.com/ca

ncer/cancer_specific_myeloma.html

fn2 Shewit Bezabeh, Arnold Engel,

Carolyn B. Morris, and Steven H. Lamm

Does Benzene Cause Multiple Myeloma?

An Analysis of the Published Case-

Control Literature Environmental

Health Perspectives, Volume 104,

Supplement 6, December 1996

fn3 Whysner/Scott report July 16, 2004

p.21 ¥ 2.

fn4 Kerosene - fuel for jet engines and

tractors; starting material for making

other products liquid is a mix of alkanes

(10 to 18 carbons) and aromatics with a

boiling range of 175 to 325 degrees

Celsius. Diesel fuel is a mix of alkanes

(12 or more carbon atoms) with a boiling

range of 250 to 350 degrees Celsius.

3. Daubert and Fed. R. Evid. 702

The Supreme Court’s decision in Daubert

established the duty of a trial judge, under Fed. R.

Evid. 702, to play the role of a gatekeeper, insuring

that the fact-finding process does not become distorted

by what is popularly called junk science. See Gen.

Elec. Co. v. Joiner, 522 U.S. 136, 142; see also Kennedy

v. Collagen Corp., 161 F.3d 1226, 1229-30 (9 Cir.

1998); Whiting v. Boston Edison Co., 891 F.Supp. 12,

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24 (D.Mass. 1995). This role is especially sensitive in

cases where the plaintiff claims that exposure to a

toxic substance caused her injury, because a jury may

accept an expert’s opinion that conforms with their

underlying fears of toxic substances without carefully

understanding or examining the basis for that opinion.

See id.

Under Daubert, the trial court performs its

gatekeeping function by determining if the proffered

evidence is both relevant and reliable. Daubert, 509

U.S. at 589-95. Scientific evidence is deemed reliable

if the principles and methodology used by the expert

proffering it are grounded in the methods of science.

Id. at 592-95. In Daubert, the Supreme Court gave a

non-exhaustive list of factors for determining whether

scientific testimony is sufficiently reliable to be

admitted into evidence, including: (1) whether the

theory or methodology can be, and has been, tested (2)

whether the theory or technique has been subjected to

peer review and publication, (3) the known or potential

rate of error, (4) the existence and maintenance of

standards controlling the methodology’s operation and,

finally, (5) general acceptance in the relevant

community. Jd. at 393-94. Additionally, if an expert

does not conduct his or her own research, independent

of the litigation, on the subject of the testimony, the

district court must determine “whether there exists

any objective, verifiable evidence that the testimony is

based on scientifically valid principles.” Domingo ex

rel. Domingo v. T.K., 289 F.3d 600, 605 (9"" Cir. 2002)

(internal citations omitted) (quoting Daubert v. Merrell

Dow Pharm., Inc., 43 F.3d 1311, 1317-18 (9" Cir. 1995)

(“Daubert IT”)).

Experts may demonstrate the scientific validity

of a theory or technique by showing that “the research

and analysis supporting the proffered conclusions have

been subjected to normal scientific scrutiny through

peer review and publication.” Daubert IT, 43 F.3d at

1318. Alternatively, testifying experts may also show

the validity of their theory by explaining “precisely

how (the experts) went about reaching their

conclusions and pointing to some objective source—a

learned treatise, the policy statement ofa professional

association, a published article in a reputable scientific

journal or the like—to show that they have followed the

scientific method, as it is practiced by (at least) a

recognized minority of scientists in the field.” Id. At

1319.

Dr. Ridenour’s opinions, as expressed in his

report, do not meet the necessary standard for

reliability under Daubert. The Daubert factors refer to

the “theory or technique” that is the basis for the

expert’s scientific evidence and expert opinion. Dr.

Ridenour’s report contains no mention of a specific

scientific theory or technique used in reaching his

conclusions, nor it there any reference to a body of

scientific knowledge or principles that was drawn upon

in the evaluation. Because the theory or technique

used is unknown, there is no proof that Dr. Ridenour’s

methods of evaluation have been or even can be

tested.” There is no evidence of peer review or

*Plaintiffs attorney, Dr. Levin, claims that Dr. Ridenour

used “differential diagnosis” as the foundation for his expert

opinion. (See, (#46) at 6-7),. This court appreciates that plaintiff's

attorney is a licensed physician, but Dr. Levin cannot offer

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publication, of the error rate for the particular

scientific technique used, or the level of acceptance for

the theory or technique in the scientific community.

In applying the Daubert factors, pursuant to

Fed. R. Evid. 702, Dr. Ridenour’s report must be

excluded because (1) Dr. Ridenour’s opinion is not

supported by reliable scientific evidence; (2) his

opinion failed to follow an appropriate methodology to

determine general or specific causation and (3) Dr.

Ridenour is not qualified to render an expert report

regarding whether exposure to jet fuel caused

plaintiffs tumor.

testimony in an attempt to bolster Dr. Ridenour’s report. Rather

as an expert, Dr. Ridenour’s report must speak for itself. However,

the report fails to even mention the use of differential diagnosis

and his report does not illustrate that he followed that

methodology. Once general causation is established, an expert

utilized a differential diagnosis procedure to eliminate the other

most likely causes of a condition. (See In re Breast Implant

Litigation, 11 F.Supp.2d 1217, 1229 (D.Colo. 1998). In the present

instance, if Dr. Ridenour had established generally that jet fuel

can cause a malignant plasmacytoma, using the differential

diagnosis procedure he needed to attempt to eliminate all other

causes of plaintiffs condition. Dr. Ridenour’s report does not even

mention other potential causes that may have affected plaintiff,

nor how he was able to eliminate them from being the cause of

plaintiffs tumor. Dr. Ridenour’s report makes no mention of any

such potential alternative factor, causes, including medical

history, environmental, ctc., even in an attempt to eliminate them

under the differential diagnosis method. While plasmacytoma is

a blood-related cancer and is not typically associated with

smoking, Dr. Ridenour’s report makes no mention of plaintiffs

smoking habit which consisted of 3 packs a day. The report

instead simply offers a conclusory statement unsupported by any

methodology.

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Dr. Ridenour’s report is an attempt to establish

causation without employing an _ appropriate

methodology and without providing reliable scientific

evidence that supports his conclusion. The website

that Dr. Ridenour cites for his proposition that

unburned motor fuels of all types have been linked to

various cancers including multiple myeloma, is not

peer reviewed and does not support his position. The

website states “[s]tudies have shown an increases

prevalence in patients who have been exposed to fuel

oil products, agricultural workers, miners and sheet

metal workers. The specific etiologic factors regarding

multiple myeloma are unknown.” The article that Dr.

Ridenour cites to support his position that engine

exhausts are a known cause of multiple myeloma

concludes that “causes of multiple myeloma are not

clear” and that “causal agents for multiple myeloma

have not been found.” (See (#20) Ex. 15).

Dr. Ridenour’s reliance on the Whysner/Scott

report to support his third assertion is misplaced.* In

*http://www.21stcenturyoncology.com/cancer/cancer_specific_m

yelomal. htm]

‘Plaintiff takes a twofold approach to the experts’ report

of defendant. First, plaintiff cites the Whysner/Scott report for the

proposition that jet motor exhaust causes plasmacytoma. (See

(#38) at 4). As discussed, this court rejects that assertion. Second,

plaintiff argues that the Whysner/Scott report is based upon pure

junk science and relies upon reports that make “absolutely no

mention of adult cancers, adult plasmacytoma, or adult multiple

myeloma.” (See (#47) at 9).

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relevant part, the report states that the “majority of

epidemiological studies which have evaluated the risk

or myeloma among agricultural workers have reported

positive associations.... Various studies have linked

these elevated risks to an array or exposures including

grain dusts, certain farm animals, pesticides, and

tractor engine exhausts.” This statement is insufficient

to support the conclusion that jet fuel caused plaintiff's

cancer. Rather this statement shows that the most

consistent association of multiple myeloma with

occupations has been agricultural workers but the

actual causative agent has not been identified. Finally,

Dr. Ridenour makes a statement about kerosene and

diesel being closely related chemically to jet fuel, but

provides no evidence or peer reviewed article to

support this conclusion.

In sum, Dr. Ridenour’s report is precisely the

kind of subjective testimony that is inadmissable

pursuant to Rule 702 and as clarified by Daubert and

its progeny.

4. Timeliness of Expert Disclosure

Even though this court has already found that

Dr. Ridenour’s report is inadmissable under Rule 702,

this court will consider defendant’s alternative

argument that the expert testimony be excluded as a

sanction under Rule 27 of the Federal Rules of Civil

Procedure for failure to comply with this court’s

scheduling order.

Under the scheduling order, the deadline for

disclosing witnesses was July 19, 2004. (See (#10)).

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Plaintiff failed to disclose any expert witnesses by July

19, 2004. On July 27, 2004, the United States

contacted Plaintiff by letter (see (#40) Ex. 10) and

asked whether plaintiff was going to rely on any expert

reports. On August 4. 2004, plaintiff's counsel stated

by email that he would offer Dr. Ridenour’s report as

a rebuttal expert. Ud.) On August 4, 2004, the United

States sent plaintiffs counsel a letter reserving the

right to object to Dr. Ridenour’s report because

plaintiff is the party with the burden of proof and “was

required to disclose any expert evidence necessary to

prove its prima facie case on or before the date of

expert witnesses, July 19, 2004.” (See (#40) Ex. 11). On

August 13, 2004, plaintiff submitted the “rebuttal

report” of Dr. Ridenour. (See (#40) Ex. 12).

“A scheduling order is not a frivolous piece of

paper, idly entered, which can be cavalierly

disregarded by counsel without peril.” Johnson uv.

Mammoth Recreations, Inc., 975 F.2d 604, 610 (9"" Cir.

1992). A district court’s decision to honor the terms of

its binding scheduling order does not simply exalt

procedural technicalities over the merits of the case.

See id. Disregard of scheduling orders undermines the

court’s ability to control its docket, disrupts the

agreed-upon course of the litigation, and rewards the

indolent and the cavalier. See id.

A party “that without substantial justification

fails to disclose information requires by Rule 26(a)

shall not, unless such failure is harmless, be permitted

to use as evidence at a trial any information not so

disclosed.” Federal Rules of Civil Procedure 37(c)(1). If

full compliance with Rule 26(a) and 26(e)(1) is not

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made, Rule 37(c)(1) mandates some sanction, the

degree and severity of which are within the discretion

of the trial judge. The Ninth Circuit has previously

considered the issue of expert preclusion as one

possible remedy for failure to comply with Rule. In

Wanderer v. Johnston, 910 F.2d 652, 656 (9" Cir.

1990), the Ninth Circuit set out the test to determine

the propriety of imposing the sanction of dismissal or

default as a remedy for Rule 26 violatiors. The test

requires a court to analyze 1) the public’s interest in

expeditious resolution of litigation; 2) a court’s need to

manage its docket; 3) risk of prejudice to the

defendants; 4) public policy favoring disposition of

cases on their merits; and 5) the availability of less

drastic sanctions.

The public and the parties have an interest in

expeditious resolution of litigation. Requiring the

parties to comply with the Rules of Civil Procedure

and with the court’s scheduling order promotes

achieving such goals by eliminating the need for

continuances. Setting forth deadlines allows a court to

manage its docket; defendant did not request an

extension within which expert disclosure could be

submitted. There is no indication that the parties

stipulated to an extension of time to file expert

disclosures.

Plaintiff offers absolutely no justification for

missing the deadline for disclosure of expert reports.

Rather, plaintiff appears to be attempting to

circumvent this court’s scheduling order’ by

representing that Dr. Ridenour’s report be admitted as

a rebuttal report to the defendant’s experts. While

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“{plublic policy favors disposition of cases on their

merits, that policy has a procedural as well as a

substantive component.” Keener v. U.S., 131 F.R.D.

639, 642 (D.Mont. 1998). Plaintiff bears the burden of

proof in this case and she must produce admissible

evidence in her case in chief as to every factor in her

negligence claim. The only proof of general and specific

causation is the report of Dr. Ridenour.® Rather, than

produce the expert report in a timely manner, plaintiff,

without cause, missed the deadline, waiting until

defendant’s had filed their expert report, and

attempted to meet their burden by submitting Dr.

Ridenour’s report as rebuttal evidence. This court finds

and concludes that Dr. Ridenour’s report was not

timely filed in relation to the court’s scheduling order

and should be excluded.

IV. Conclusion

Dr. Ridenour’s report is inadmissable under

Fed. R. Evid. 702 and Daubert. Additionally, plaintiff

failed to comply with this court’s scheduling order in

filing the report so it is inadmissable. Plaintiff has

failed to present admissible evidence on the issue of

causation. Accordingly, IT IS ORDERED that

plaintiffs motion for summary judgment (#38) be

Plaintiff fails to realize that she bears the burden of

introducing admissible evidence as to every element of her

negligence claim during her case in chief. The only evidence

plaintiff offers regarding general and specific causation is Dr.

Ridenour’s report. Even assuming that Dr. Ridenour’s report were

admissible as rebuttal evidence, plaintiff would still fail to

produce any evidence of causation during her case-in-chief and

defendant would be entitled to a directed verdict.

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DENIED and defendant’s motion (#40) be GRANTED.

Let judgment be entered accordingly.

Dated: This 15" day of July, 2005.

/s/

UNITED STATES DISTRICT JUDGE

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FILED

JUL 24 2007

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICKY MORIN,

Plaintiff - Appellant,

No. 05-16702

v. : D.C. No. CV-03-00503-HDM

MEMORANDUM

UNITED STATES OF AMERICA,

Defendant - Appellee.

Appeal from the United States District Court

for the District of Nevada

Howard D. McKibben, District Judge, Presiding

Argued and Submitted July 12, 2007

San Francisco, California

!

Before: THOMPSON, RYMER, and FISHER, Circuit

Judges.

Vicky Morin appeals the district court's grant of

“This disposition is not appropriate for publication and is

not precedent except as provided by 9th Cir. R. 36-3.

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summary judgment in favor of the United States of

America on her Federal Tort Claims Act negligence

case. Morin sought compensation from the United

States for cancer she alleged was caused by her

exposure to jet fuel and jet engine exhaust fumes while

employed at the Naval Air Station in Fallon, Nevada.

The district court held that Morin's only proffered

expert testimony — that of her treating physician, Dr.

Gary Ridenour — failed to provide sufficient evidence

of causation to create a genuine issue of material fact

for trial.

The district court did not abuse its discretion in

excluding Dr. Gary Ridenour's testimony, and Morin

otherwise failed to create a triable issue of causation.

We therefore affirm.

Dr. Ridenour epined that Morin's plasmacytoma

was caused by exposure to jet fuel and/or jet engine

exhaust, but he did not conduct any independent

research to support his conclusion that jet fuel and jet

engine exhaust were generally capable of causing

plasmacytoma, nor did the studies he cited provide

sufficient suppert for that principle. See Shewit

Bezabeh et al., Does Benzene Cause Multiple Myeloma?

An Analysis of the Published Case-Control Literature,

104 (Supp. 6) Envtl. Health Persp. 1393, 1397 (Dec.

1996)("[B]enzene exposure is unlikely to be a causal

agent for multiple myeloma."). Additionally, although

differential diagnosis is generally accepted as a

scientifically valid methodology supporting admissible

testimony under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), Dr.

Ridenour's expert report did not show whether or how

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he applied differential diagnosis in determining the

cause of Morin's plasmacytoma. See Clausen v. M/V

New Carissa, 339 F.3d 1049, 1058 (9 Cir. 2003). The

district court was within its discretion in determining

that Dr. Ridenour was not qualified to render an

opinion as to general causation, and his method of

reaching an opinion regarding specific causation was

not sufficiently reliable to be admissible under Federal

Rule of Evidence 702 and Daubert. See Kumho Tire Co.

v. Carmichael, 526 U.S. 137, 141-42 (1999).”

We further conclude that the district court did

not abuse its discretion in failing to hold an

evidentiary hearing regarding the admissibility of Dr.

Ridenour's proffered testimony, as Morin did not

request one and the district court had an adequate

record. Jaros v. E.I. Dupont (In re Hanford Nuclear

Reservation Litig.), 292 F.3d 1124, 1138 (9 Cir. 2002);

United States v. Alatorre, 222 F.3d 1098, 1100 (9“ Cir.

2000).

AFFIRMED.

‘Morin also claims the district court erred in excluding Dr

Ridenour's testimony as a Federal! Rule of Civil Procedure 37(c)(1)

sanction for failure to timely serve her expert designation and

report. We affirm the exclusion of Dr. Ridenour's testimony for the

reasons discussed above, however, and do not reach the question

whether the Rule 37 sanction was appropriate in this case

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

SEP 11 2007

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

VICKY MORIN,

Plaintiff - Appellant,

No. 05-16702

Vv. D.C. No. CV-03-00503-HDM

District of Nevada, Reno

UNITED STATES OF AMERICA,

Defendant - Appellee.

Before: THOMPSON, RYMER and FISHER, Circuit

Judges.

The panel, as_ constituted above, has

unanimously voted to deny appellant Morin's petition

for rehearing. Judges Rymer and Fisher have also

voted to deny her petition for rehearing by the court en

banc, and Judge Thompson has recommended denial

of that petition.

The full court has been advised of the petition

for court rehearing en banc, and no judge of the court

has requested en banc rehearing. See Fed. R. App. P.

35(b). The petitions for panel rehearing and for

rehearing by the court en banc are DENIED.

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