Petition for Writ of Certiorari — Carlson v. General Electric Co.

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Supreme Court. U i

cy Le 5 -

02 208 sus gan

No.

In The

Supreme Court of the United States

MERLIN E. CARLSON, JR.

Petitioner.

GENERAL ELECTRIC COMPANY, a foreign corporation;

KAISER ALUMINUM AND CHEMICAL

CORPORATION, a foreign corporation,

Respondents

On Petition for Writ Of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Marcia M. Meade

Attorney for Petitioner/

Counsel of Record

DAWSON & MEADE

1310 W. Dean

Spokane, Washington 99201-2015

(509) 328-4266

QUESTIONS PRESENTED FOR REVIEW

By operation of Weisgram v. Marley Co., 528 U.S.

440, 120 S. Ct. 1011; 145 L. Ed. 2d 958 (2000) and Joiner

vs. General Elec. Co., 522 U.S. 136, 118 S.Ct. 512 (1997)

post-trial are the earlier rulings of the trial court on the

admission of expert witness testimony the “law of the

case” absent a finding by an appellate court that tnal

court abused its discretion in admitting the expert

opinion?

In accordance with Weisgram v. Marley Co., 528

U.S. 440, 120 S. Ct. 1011; 145 L. Ed. 2d 958 (2000) and

Joiner vs. General Elec. Co., 522 U.S. 136, 118 S.Ct. 512

(1997) do a subsequent district court and the appellate

court absent an abuse of discretion by a trial court lack

authority to judicially negate the trial court’s ruling that

an expert witness was competent to testify and the jury’s

verdict is based upon sufficient evidence?

In a mutli-plaintiff action is it a violation of the Fifth

Amendment, U.S. Constitution, to invoke the “law of

the case doctrine” to an individual plaintiff, who the

court previously held was lacking in the jurisdiction

standing to appear before that court in earlier

proceedings?

Under the guidelines of Daubert v. Merrell Dow,

509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed 469 (1993) is the

differential diagnosis process sufficiently scientifically

reliable for evaluating whether a particular witness’ is

competent to offer expert witness opinions?

When it has been established to be medically

unethical to test a hazardous chemical on humans to

establish levels at which risk of injury or death occur, is

it a denial of the Seventh Amendment to require expert

testimony based upon published peer reviewed studies

rather than or in an addition to expert testimony

predicated upon the differential diagnosis process?

Absent an abuse of discretion may an appellate court

trump a trial court's finding that a reliable differential

diagnosis provided a valid foundation for an expert

opinion on causation by holding there was insufficient

peer reviewed scientific literature on the particular

scientific topic under a Daubert v. Merrell Dow, 509

U.S. 579, 113 S.Ct. 2786, 125 L.Ed 469 (1993) analysis?

When a jury has reached a verdict under a Fed. R.

Civ. P. 49(a) verdict and the trial court has determined

that there is sufficient proof to prove at least one of a

parties theories of liability is it a violation of the

Seventh Amendment, U.S. Constitution, for a later trial

court to make a finding as a matter of law that the same

prior prove claim should be dismissed as a matter of

law?

lil

LIST OF PARTIES

Petitioner is Merlin E. Carlson, Jr., who is a Plaintiff

in District Court and an Appellant in Court of Appeals.

Respondents are General Electric Company and

Kaiser Aluminum and Chemical Corporation, who

were Defendants in District Court and Respondents in

Court of Appeals.

David Schudel, Timothy Schudel, Sandra Schudel,

Daniel Glass, Craig Thompson, Kathrene Froese,

Deborah Williams (Guargana), John Hopkins and Ruth

Hopkins were Plaintiffs in District Court and in related

appeals Appellants in Court of Appeals.

LIST PURSUANT TO RULE 29.6

According to the prior corporate disclosure

statement General Electric Company is a publicly held

corporation with no parent companies. Its subsidiaries

and affiliates are General Electric Capital Corporation;

General Electric Credit International, N.V.;

Montgomery Ward and Company, Inc.; Genera!

Electric Capital Preferred Asset Corporation; CAMCO,

Inc. (Canada); General Electric Capital Services, Inc.;

GECC Financial Corporation (Hawaii); General Electric

Capital Canada, Inc.; GNA Corporation; Mercer Bank

(Austria); Imaging Financial Services, Inc.; Dart V.

Kraft, Leasing Corporation, NBC Internet, Inc., Credit

DeL’Erst, Finax 1st Home Federaj Savings and Loan

Association of the Carolinas, F.A.A.B., GE Capital

Aviation Services, Ltd., GE Capital Mortgage Services,

Inc., GE (NZ) Ltd. (New Zealand), GE Capital PTY LTD

(Australia), Gate Finance Corporation, General Electric

Capital Canada, Inc., Outlet Broadcasting, Inc. and

Service Bank GmbH.

LIST PURSUANT TO RULE 29.6 — Continued

Kaiser Aluminum and Chemical Corporation is a

wholly owned subsidiary of Kaiser Aluminum

Corporation. Kaiser Aluminum Corporation has

equities securities which are publicly held. Kaiser

Aluminum Corporation’s parent, Maxxam, Inc., has

debt and equity securities which are publicly held.

Maxxam, Inc.’s affiliates with either publicly held

equity or debt securities are Maxxam Group, Inc.; the

Pacific Lumber Company; Scotia Pacific Holding

Company; and Sam Houston Race Park, Ltd.

TABLE OF CONTENTS

QUESTION PRESENTED. .............0::eseseee eee

LIST OF PARTIES. ...........0ccscecscececscscesecesens

TABLE OF AUTHORITIES.............-.:0-0s0s0+

PETITION FOR WRIT OF CERTIORARI.........

OPINIONS BELOW..........-.-+:::sssseeeeeeeeeees

JURISDICTION. .........0-cssccceserscecscrsrecensseons

RULES INVOLVED. ............c2ceeeeeseeeeeeeeweees

STATEMENT OF THE CASE.............0200eese0s

A. Background Facts............-s:seseseeeeeee

B. Procedural Background.................6++

ARGUMENT FOR GRANTING THE WRIT.....

I. In Multi-plaintiff Litigation Application of

“The Law Of The Case Doctrine” To One

Plaintiff Who The Court Has Previously

Declined Appellate Jurisdiction Is A Denial

Of Due Process Of Law..........::::00+

TABLE OF CONTENTS - Continued

II. In The Interest Of Judicial and Litigant

Economy The Reliable Scientific Process of

Differential Diagnosis Should Be

Affirmative As An Acceptable Means For

Analyzing Proffered Expert Opinions

Under a Daubert v. Merrell Dow, 509 U.S.

579, 113 S.Ct. 2786, 125 L.Ed 469 (1993)

III. If Rules 49(a) and 50 Are To Be Used

Together There Are, And If Not, There

Should Be Certain Ground Rules Enforced

To Promote Just, Speedy, And Inexpensive

Resolutions Of Disputes...........:ccccccceseeeeeees

COLT GAN sass bactavccscensnsantupseussperacenuiinn

APPENDIX A

Merlin E. Carlson, Jr. v. General Electric

and Kaiser Aluminum and Chemical Corp.,

___ F3d ___ (9th Cir. 2002) (Memorandum).....

Schudel, et al., v. General Electric and

Kaiser Aluminum and Chemical Corp., 120

F.3d 991 (9% Cir. 1997)(Opinion)................6+6

APPENDIX B

Schudel, et al., v. General Electric and

Kaiser Aluminum and Chemical Corp., No. 92-

00081, (E.D. Wash., Nov. 25, 1994) (Order Re:

Post-Trial Motions)..................4. ibpeenesnaeeion

Page

TABLE OF CONTENTS - Continued

Schudel, et al., v. General Electric and

Kaiser Aluminum and Chemical Corp., No. 92-

00081, (E.D. Wash., November 25, 1994) (Order

Re: Dismissing Certain Claims, Inter

APPENDIX C

Schudel, et al., v. General Electric and

Kaiser Aluminum and Chemical Corp., No. 92-

00081, (E.D. Wash, July 13, 1994) (Judgment in

& Civ lh COBB). nv ccsccncececevesccsccssvescsscccensesersess

Schudel, et al., v. General Electric and

Kaiser Aluminum and Chemical Corp., No. 92-

00081, (E.D. Wash, July 13, 1994)(Special

Var CIGD, oo vcaciccccensccsccesssenssssnctscessess

APPENDIX D

U.S. Constitution Seventh Amendmenrt....

Red R.Giv P.. GOR). cccecsevsccecssoccccsscnsevsen

Fed.R.Civ.P. 50(a)(b) 1991 version............

2B U.S.C. § 2072. ..cccsesesecesesssccverseseorsences

U.S. Constitution Fifth Amendment.........

A31

A59

Vili

TABLE OF CONTENTS - Continued

APPENDIX E

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-00081

(E.D. Wash, June 27, 1994) (Plaintiffs’

Memorandum On Potential Instructional Error

By Attempting To Define Area Of Injury).......

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-

00081(Jury Instructions (Damage)).................

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-00081

(E.D. Wash, December 28, 1994) (Affidavit Of

Marcia M. Meade In Response To Defendants’

Opposition To The FRCP 54(B) Language.........

Organic Solvent Encephalopathy: An Old

Hazard Revisited, Am. |. Ind. Med., Vol. 22

Schudel, et al., v. General Electric and Kaiser

Aluminum. and Chemical Corp., No. 92-00081

(E.D. Wash, January 18, 1994) (Offer Of Proof

Fe I Se iensentibscectassicccontimncien

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-00081

(Declaration of Daniel Goldstein, M.D.) .........

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-00081

(E.D. Wash, January 18, 1994) (Offer Of Proof

By William E. Morton, M.D., Ph.D.)..........:.000000

A68

A72

A74

A79

A90

A103

A107

press ee ee

TABLE OF CONTENTS - Continued

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-00081

(E.D. Wash, March 7, 1994) (Declaration Of

Samuel Milham, Jr. On Offer Of Proof).

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-00081

(E.D. Wash, March 7, 1994) (Offer Of Proof By

Plaintiffs Re: The Testimony Of Paula A

Lantsberger, M.D.).............++.

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-00081

(E.D. Wash, January 18, 1994) (Declaration of

Marcia M. Meade on Declaration of Dr. Beaty

(Offer of Proof of Edward Thatcher Beaty,

PAT. scicecessccsanesnscessicuttntounveneeisucnteniaaseouest

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-

00081(E.D. Wash, January 18, 1994) (Offer of

Proof of Lloyd I. Cripe, Ph.D.)............-.....65

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-00081

(E.D. Wash, December 21, 1998) (Declaration

Of Daniel M. Goldstein, M.D. On Schudel

Inquiry)..........+++++

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-00081

(E.D. Wash, December 21, 1998) (Affidavit Of

Dr. William Mortonn)......002-cscsccccssccescsesesseese see:

A127

A165

A174

Al91

A200

TABLE OF CONTENTS - Continued

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-00081

(E.D. Wash, Dec. 21, 1998) (Declaration Of

Paula A. Lantsberger, M.D.)......::s:sssseseseseesesesees A207

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-00081

(E.D. Wash, December 21, 1998) (Declaration

Of Dr. Kaye H. Kilburn, M.D.).....---sessssssessseees A212

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-00081

(E.D. Wash, January 5, 1999) (Declaration Of

Geoffrey A. Kelafant, M.D.).....-.+ssssessssssreesseees A222

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-00081

Trial Testimony of Daniel Goldstein, i: ae A228

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-00081

Trial Testimony of Paula Lantsberger, M.D...... A249

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-00081

Trial Testimony of Lloyd I. Cripe, Ph.D........ A258

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., No. 92-00081

Trial Testimony of Edward T. Beaty, Ph.D... A263

TABLE OF AUTHORITIES

CASES

Baker v. Dalkon Shield Claimants Trust, 156

F.3d 248 (18t Cir. 1998)......ccccccscsesseeeeseneeseseeeees

Carlson. v. General Electric Co., 2002 U.S. Lexis

9184 (9t Cir. 2002).......cscccceseeneeeesesseeeseeeenees

Daubert v. Merrell Dow, 509 U.S. 579, 113

S.Ct. 2786, 125 L.Ed 469 (1998).......000008.

Disimone v. Browner, 121 F.3d 1262, 1266

(Oth Cir. 1997)......scccsesesesescrsesessesssenseeesenenenens

Eaton v. National Steele Products, 624 F.2d 863

(Ot Cir. 1980).......sesssessesscscscseseeesessssssseeneeeers

Freeman v. Hittle 747 F.2d 1299 (9th Cir.

1984)..

Hardyman v. Norfolk & Western Ry. Co., 243

F.3d 255 (6% Cir. 2001)...........ceeeeeeeeeeeeeees

Heller v. Shaw Industries, Inc., 167 F.3d 146

(3° Cir. 1999)........cceeersseceeserseceesseeeseeees

Hollander v. Sandoz Pharms. Corp. 289 F.3d

1193 (10 Cir. 2002).........:.eeeeeeeeeceeeeeeees

Hose v. Chicago Northwestern Transportation

Co., 70 F.3d 968 (8% Cir. 1995).........eeeeeeees

Intalco Aluminum v. L&I, 66 Wn.App. 664,

833 P.2d 390 (1992).........s.cececerececeeeeeeeens

Joiner vs. General Elec. Co., 522 U.S. 136, 118

S.Ct. 512 (1997)........crccesescescrscsersscccevcoeee

Kannankeril v. Terminix International, Inc., 128

F.3d 802 (34 Cir. 1997)........:.ceceeeeeeeeeeees

Page

i, 1, 8,

10, 13

xil

TABLE OF AUTHORITIES - Continued

Kirkbride v. Continental Casualty Co., 933 F.2d

729, 732 (9TH Cir. 1991)......-0eseeeeeeeeeee ee 11

McCord v. McGutre, 873. F.2d 1271,

amended, 885 F.2d 650 (9% Cir. 1989).......-. 1, 8,

13, 24

Messenger v. Anderson, 225 US. 436, 32 S. Ct.

739, 56 L. Ed. 1152 (1912).....--.-0eseeeeeeeree 10

Milgard Tempering, Inc. Vv. Selas Corp. of

America, 902 F.2d 703, 715 (9th Cir. 1990)... 11

Moore v. Ashland Chem., Inc., 151 F.3d 269,

277-79 (5th Cir. 1998) (en banc), cert.

denied, 526 U.S. 1064, 143 L. Ed. 2d 541,

Seo, en 16

In re Paoli R.R. Yard PCB Litig., 35 F.3d 717,

758 (3d Cir. 1994).asonrscesesnnsensnseseseernneceeensen 17

Phillips v. Negley, 117 U.S. 665 (1886)....... .

Peterman v. Chicago, Rock Island & Pacific RR

Co., 493 F.2d 88(8 Cir), cert. denied, 417

U.S. 947 (1974) ...ssssssssecserssesenessnsesnenenenensnesseees 8

Schudel v. General Elec. Co., 120 F.3d 991 (9th

Cir. 1997), cert. denied 526 U.S. 137, 143 L. passim

Ed. 2d 238, 119 S. Ct. 1167..........02eeeeeeeees

Stradley v. Cortez, 518 F.2d 448 (Cir. 1975)....... 8

Weisgram v. Marley Co., 528 U.S. 440, 120 S.

Ct. 1011; 145 L. Ed. 2d 958 (2000).........--. i, 9, 10,

14, 23,

Westberry v. Gislaved Gummi Ab, 178 F.3d

257 (Ath Cir. 1999)........ceeeeeeeeeeeeeeeseren eee ens 16, 17

sino. ie os i alll

xiii

TABLE OF AUTHORITIES - Continued

Zuchowicz v. United States, 140 F.3d 381

(274 Cir, 1998).....cccsccsecsesseseesesesnseneneeneenseneeseess 16

STATUTES

28 U.S.C. § 1254(1)........cceeeeeeeeeeeeeeeeee nese eeees 3

28 U.S.C. § 1291 ..........cecceeeneee eee eeeneeee rere eens 3

28 U.S.C. § 1332(a)(i) ...-..-eeeeee eee eee eee eee neces: 2

28 U.S.C. § 2072.........ecceeeeeeeneee eee e eee eeee seen 4

29 U.S.C. § 1446(a)......ccccccccceeseterenseeeereeneeee senses . 6

29 CFR § 1910.1000 (a)(2).....-.2:eeseeee reese erees 21

99 CER 1900.1000............-ceccecceccecceececcecceess 21

RULES & REGULATIONS

Red.R.App.P 27.11........s:sscsesecssseenereetenessessneeneetene 8

Federal Rules of Civil Procedure, Rule 49(a).... 23, 24,

Federal Rules of Civil Procedure, Rule 50.......... 10, 13,

Federal Rules of Civil Procedure, Rule 50(a)..... 4,7

Federal Rules of Civil Procedure, Rule 50(b)..... 2/7,

Federal Rules of Civil Procedure, Rule 54(b)..... : ,

Federal Rules of Civil Procedure, Rule 59(b)..... 3

Supreme Court Rule 13.1

| Supreme Court Rule 13.3 3

| US. Constitution, Fifth Amendment...........-.- 4

U.S. Constitution, Seventh Amendmenrt.......... =

ee eee

— — —

XIV

TABLE OF AUTHORITIES - Continued

OTHER AUTHORITIES

Organic Solvent Encephalopathy: An Old

Hazard

Revisited, Am. J. Ind. Med., Vol. 22: 109- 5,19

PED ED sendecacenerssivecscias esinentninwsiacns

PETITION FOR WRIT OF CERTIORARI

Merlin E. Carlson, Jr., Petitioner herein, respectfully

pray that a Writ of Certiorari issue to review the

judgment and opinions of the United States Court of

Appeals, Ninth Circuit, entered on May 10, 2002.

The Ninth Circuit’s rulings below are appropriate

for this Court’s consideration for several reasons. The

Ninth Circuit’s decision: (1) conflicts with several

decisions of another United States Court of Appeals on

the same important federal matter; (2) the decision

conflicts with substantive state law on the burden of

proof for causation. The important matter involved the

above include: (1) whether the “law of the case”

doctrine can be applied to a plaintiff in a multi-plaintiff

action, where the court previously declined appellate

jurisdiction; (2) where without due process of law the

court imposed a judicial determination on a right that

the court previously declined to hear the party due to a

lack of appellate jurisdiction; (3) may a subsequent

district court overrule a substantive post-trial ruling of

a prior trial court; (4) under Daubert v. Merrell Dow

509 U.S. 579 (1993) is the differential diagnosis process

scientifically reliable.; (5)when considering a Rule 50(b)

motion, may the district court resurrect sub-issues that

have been waived pursuant to Rule 49(a) and (6) after

applying Joiner vs. General Elec. Co, 522 U.S. 136, 118

S.Ct. 512 (1997) to the trial court decision to admit expert

testimony should Petitioner’s jury verdict that was

previously found to be based upon sufficient evidence be

reinstated with interest in accordance with McCord v.

Maguire, 873 F.2d 1271, 1274 (9 Cir. 1989).

The Ninth Circuit decision also represents a

departure from the usual course of judicial proceedings

by holding a party only presented proof of two

scientific articles to support expert opinions when in

fact there are scores of references to and copies of

scientific articles in the court record.

OPINIONS BELOW

The judgments rendered at the trial court level and

rulings by the trial court which give rise to the appeal

to the Ninth Circuit are the Rule 49(a) special Verdict

[62a], the Judgment of July 13, 1994 [59a], (as applied to

Petitioner Carlson), pertinent portions of trial court

ruling of November 25, 1994 [21a], The opinion of the

United States Ninth Circuit Court of Appeals that gives

rise to this petition is Carlson. v. General Electric Co.,

2002 U.S. Lexis 9184 (9% Cir. 2002) [1a] and The opinion

of the United States Ninth Circuit Court of Appeals that

gives rise to this petition is Schudel, et al. v. General

Electric Co., 120 F.3*4 991 (9% Cir. 1997)[5a].

JURISDICTION

This action was commenced on September 30, 1991,

in the Spokane County, Washington Superior Court. It

was removed by Defendants General Electric and

Kaiser Aluminum (hereinafter collectively referred to as

GE, if not otherwise stated) to the Federal District

Court, Eastern District of Washington, based upon

diversity of citizenship under 28 U.S.C. § 1332(a)(i).

Following a 54-day jury trial before Judge Fred Van

Sickle, judgment was entered on July 13, 1994, in favor

of Carlson. [54-a]. GE filed its motion for judgment as a

i - _ ————— ———

Mh drat I Ave as Se Neg RAN mnt d Lakers 124%

eRe ANS It os EO EES Lt NN

matter of law pursuant to Fed. R. Civ. P. 50(b)

(hereinafter “Rule 50”) and alternative motion for a

new trial under Fed. R. Civ. P. 59 (hereinafter “Rule

59”) on July 27, 1994. GE did not file a Notice of Appeal

challenging the July 13, 1994, judgment.

November 25, 1994, the trial court sua sponte

granted a new trial. On December 21, 1994, Carlson

appealed to the Ninth Circuit Court of Appeals under

28 U.S.C. § 1291. The Ninth Circuit Court of Appeals

declined to accept appellate jurisdiction of Carlson's

appeal. Appellate jurisdiction was taken of other

plaintiffs. The Ninth Circuit issued its opinion declining

appellate jurisdiction on July 23, 1997. Schudel, et al. v.

General Electric, Co.120 F.2d 991 (9% Cir. 1997).

Thereafter, on November 24, 1997, the Ninth Circuit

denied Carlson’s timely filed motion for rehearing and

suggestion for rehearing en banc. On February 23,

1997, Carlson filed a Petition For Writ Of Certiorari

No.97-1410. April 27, 1998, the Certiorari was denied.

Carlson then remanded to district court proceed

towards trial. On September 25, 1998, Judge Van Sickle

recused and Judge Alan M. McDonald was assigned.

On March 15, 1999, Carlson’s claim was summarily

dismissed with no Rule 54(b) certification granted. On

October 5, 1999, a final judgment was entered. On

November 1, 1999, Carlson filed a Notice of appeal. The

Ninth Circuit issued a memorandum affirming the trial

court on May 10, 2002.

Pursuant to Supreme Court Rule 13.1 and 13.3, this

petition for certiorari has been filed within 90 days of

the memorandum decision. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES,

AND COURT RULES INVOLVED

Due to the lengthy nature of the materials, the full

text of the following Constitutional provisions, statutes

and court rules are set forth in Appendix D:

U.S. Constitution Fifth Amendment

U.S. Constitution Seventh Amendment

Fed.R.Civ.P. 50(a)(b) 1991 version

28 U.S.C. § 2072

STATEMENT OF FACTS AND PROCEDURAL

HISTORY

A. Background Facts.

Kaiser Aluminum Chemical Corporation worked

with General Electric Company to clean-up twenty-five

years of Polychlorinated biphenyls (herein “PCBs”)

contamination at the site known as Trentwood. (Herein

both Kaiser Aluminum and General Electric will be

collectively referred as “GE” unless otherwise stated.)

GE planned and did use known federally and state

regulated hazardous chemicals to remove the PCBs.

In October 1988 Merlin E. Carlson, Jr., was working

for Qualified Personnel, Inc., (herein “QPI”’) at

Trentwood. Through GE’s negligence Carlson was

repeatedly exposed to 5 to 10 times the permissible

exposure limits of numerous hazardous chemicals. He

was injured by the repeated negligent exposures.

Independent of this litigation Washington’s

occupational epidemiologist, Dr. Samuel Milhem, Dr.

Peter Houck from the Center of Disease Control, and

Spokane County Health Department investigated the

incident.! The investigators examined the work site and

determined what and how hazardous chemicals* were

used. Investigators referred the exposed workers to

local physicians for further testing and treatment. After

completing the investigation and medically following

the exposed persons for years, the investigators

published part of their medical findings in a peer-

reviewed scientific journal.

1 Originally, the health department was investigating

Legionella outbreak in a GE supervisor. When multiple

workers presented with signs of poisoning the Dr. Milhem

was called into investigate the occupational poisoning.

[127a-142a]

2 The hazardous chemicals were principle two types —

organic solvents and caustic detergents. Among many other

chemicals Trichoroethane (TCA); Perchoroehtylene (PERC);

Naphthalene; Trimethylbenzenes; 1,2,4-Trimethylbenzene

(Xylene); Sodium Hydroxide; Aryl Sulfonate; Phosphate;

Silicates; Chelate (EDTA-type); Alkyl aryl polyether;

Phosphate ester; Sodium Tripolyphosphate; Surfactant

Nonylphenoxpoly; Mono and Diakly Acid Phosphate;

Ehylene gycol; Monobutyl ether; © Cycohexanal;

Monoehanolamine; C9-C12 Paraffins and C9-C12

Cycloparaffins were used. These hazardous chemicals were

being mixed with other chemicals such as “409” and

“Wiley’s” driveway cleaner, then put in 409 spray bottles.

3 Organic Solvent Encphalophathy: An Old Hazard

Revisited, Am. J. Ind.Med. Vol. 22 (1992). [179a-89a]

Carlson is described in the journal article. After the

toxic exposures, Carlson was a completely different

person. He has persistent problems with impaired

memory, confusion, significant depression, profound

personality change and headaches. Medically the

problems are so profound he is no longer able to live

independently. [258a-264a]

Multiple expert and lay witnesses testified about

GE’s negligence. Dr. Daniel Goldstein, M.D. testified

that more probably than not Carlson had been

permanently injured by his toxic exposure to hazardous

chemicals including organic solvent mixtures. [228a-

229a] Former employers, teachers, friends, family and

the tribal chief testified as to Carlson’s abilities and

nature before and after the negligent poisoning. After a

three month trial the jury found (1) GE negligent; (2)

the negligence was a proximate cause of injury to him;

(3) Carlson was not a “loaned servant”; and (4)

damages were $2,775,768.00. [26a-27a]

B. Procedural Background.

On September 30, 1991, Carlson and nine other

plaintiffs filed a complaint for negligence in the

Spokane Superior Court of the State of Washington.

On February 25, 1992, GE had the action removed

pursuant to 28 U.S.C. § 1446/(a).

i ea St

Carlson’s only “claim” was of negligence. He had

met multiple theories of damages. Pre-trial there were

extensive “Daubert” hearings.* The court ruled that the

medical expert witness could testify based upon the

differential diagnosis process.

| Before deliberations, the parties and the district

_ court had five-day instruction conferences. A Rule

| 49(a) special verdict with questions was submitted. The

special verdict addressed each essential elements of a

negligence and GE’s affirmative defense of “loaned

servant.” GE and Kaiser did not object to the special

' verdict form and questions.

After a two-week deliberation, verdicts were

returned in favor of all plaintiffs. Before the jury was

dismissed neither GE nor the district court proposed

that the jury be required to make further or additional

Rule 49(a) findings.

ee ek ete ee

On July 13, 1994, a judgment for Carlson for

$2,775,768.00 was entered. On July 27, 1994, GE served

on Carlson’s attorneys Rule 50(b) and 59(b) motions.

GE did not move for a new trial based upon a claimed

error in the special verdict.

4 This trial was to occur shortly after the decision

Daubert v. Merrell Dow, 509 U.S. 579 (1993). Carlson's

expert witnesses filed extensive offers of proofs with

multiple attachments supporting their methodology from

peer-reviewed published scientific textbooks and journals.

For clarity the Offers of Proof for Drs. Goldstein, Morton,

Lantsberger, Milhem, Cripe and Beaty. [90a-190a] are

reproduced, and for brevity voluminous exhibits in original

are not included

On November 25, 1994, 161 days after the verdict,

the district court amended Carlson’s judgment. The

court ruled that there was sufficient evidence to

support the jury findings of negligence, loaned servant

and Carlson’s neurological damages. The court then

sua sponte ordered a new trial for a second jury to

answer sub-issues of what damages were due to

neurological and non-neurological conditions. The

order was the first notice on the court’s sua sponte

motion for a new trial for previously waived issues.

On December 9, 1994, Carlson moved for

Fed.R.Civ.P. 54(b) findings on the November 25, 1994,

Order. Carlson submitted a lack of “jurisdiction,”

asserting that the trial court lacked jurisdiction to grant

a new trial and citing to multiple authorities.°

In the Court of Appeals Plaintiffs and GE moved

under Fed.R.App.P. 27.11 for remand for lack of

jurisdiction. On March 24, 1995, the Court of Appeals

denied all motions. In denying GE’s motion to remand,

the court cited the Fed.R.Civ.P. 54(b) certification and

Freeman v. Hittle, 747 F.2d 1299 (9th Cir. 1984). On July

23, 1997, the Court of Appeals issued its opinion, ruling

that the new trial order was interlocutory and not

immediately appealable. [50-51a]. On August 6, 1997,

Carlson petitioned for rehearing. On November 24,

5 Phillips v. Negley, 117 U.S. 665 (1886); Eaton v.

National Steele Products, 624 F.2d 863 (1980); McCord v.

Maquire, 873 F.2d 1271(9" Cir. 1989);

Stradley v. Cortez, 518 F.2d 448 ( Cir. 1975); Peterman

v. Chicago, Rock Island & Pacific RR Co., 493 F.2d 88(8"

Cir), cert. denied, 417 U.S. 947 (1974) 7

1997, the Court of Appeals entered an order denying

the petition. [52-53a].

ARGUMENT FOR GRANTING THE WRIT

I. In Multi-plaintiff Litigation Application of “The

Law Of The Case Doctrine” To One Plaintiff

Who The Court Has Previously Declined

Appellate Jurisdiction Is A Denial Of Due

Process Of Law

Mr. Carlson was denied a jury trial and due process

by the Court of Appeals’ and the second district court's

unreasonable application of the “law of the case”

doctrine. Review of this departure for the “law of the

case” doctrine so far departs from the established law

of the body of circuit law and this Court, Carlson vs.

General Electric Co. calls for the exercise of this Court's

supervisory authority. In light of Weisgram v. Marley

Co., 528 U.S. 440, 120 S. Ct. 1011; 145 L. Ed. 2d 958

(2000) it is utmost urgency that this Court make clear

just “what” the law of the case means in the context of

Daubert v. Merrell Dow, 509 U.S. 579, 113 S.Ct. 2786,

125 L.Ed 469 (1993) and multi-plaintiff litigation.

6 Hereinafter referred to as Daubert.

In Messenger v. Anderson, 225 U.S. 436, 444, 32 S.

Ct. 739, 740, 56 L. Ed. 1152 (1912)) this Court stated:

In the absence of statute, the phrase "law of

the case," as applied to the effect of previous

orders on the later action of the court

rendering them in the same case, merely

expresses the practice of courts generally to

refuse to open what has been decided -- not a

limit to their power.

The “law of the case” doctrine seems straight forward.

Yet, in the 1999 Schudel appeal GE and Kaiser argued

that Weisgram v. Marley Co., stood for the proposition

that the Schudel appellate court decision rather than the

first district court’s ruling on Daubert and sufficiency of

the evidence was “the law of the case”’. If Weisgram is

a “law of the case” decision rather than one confined to

appellate jurisdiction to make final a Rule 50 ruling,

then in mutli-plaintiff litigation there is a due process

problem for plaintiffs situated as Mr. Carlson is here.

7 Mr. Carlson submits, this Weisgram tact was to avoid

an obvious conflict for General Electric Co. The Respondent

argued in Joiner vs. General Electric Co. that the appellate

court is to defer to the trial court’s Daubert findings absent

an abuse of discretion. Meanwhile General Electric Co.

argues in Schudel that the appellate court has authority to

second guess the trial court's Daubert considerations, reach

a different decision on admissibility and ignore the abuse of

discretion standard of review.

POR ae Te rd ee

oid cea

"The law of the case doctrine is a judicial invention

designed to aid in the efficient operation of court

affairs." Milgard Tempering, Inc. v. Selas Corp. of

America, 902 F.2d 703, 715 (9th Cir. 1990). The doctrine

does not apply to matters that the court has not

previously decided. The law of the case doctrine only

precludes those issues actually decided. Kirkbride v.

Continental Casualty Co., 933 F.2d 729, 732 (9™ Cir.

1991)(the doctrine did not apply when the court

previously rejected considering the matter on appeal.)

Schudel (Carlson) vs. General Electric Co. 120 F.3d

991 (9 Cir. 1997) held the court lacked appellate

jurisdiction and-explicitly declined to consider the merit

of Mr. Carlson’s case. See 120 F.3d at p. 994. In this

multi-plaintiff action the Schude/ Court either had

appellate jurisdiction or did not to hear Mr. Carlson.

Under the circumstances it is an extreme departure

from due process for the a second Appellate bench in

the same case to later decide that Mr. Carlson’s claim

was decided in the first appellate proceedings, because

the retrospectively the first court had appellate

jurisdiction. Mr. Carlson’s circumstances illustrates why

this departure from “the law of the case” doctrine is so

worrisome for multi-plaintiff litigation.

In 1997, Mr. Carlson’s case was factually and

procedurally different from the other plaintiffs. The

differences are multi-faceted. The first difference is that

Mr. Carlson lost consciousness when using organic

solvents. [231a]. None of the other plaintiffs had proof

of loss of consciousness, while using the organic

solvents. The agreed scientific knowledge is that:

“[T]he literature validates only two scenarios

from which an encephalopathy may result from

exposure to certain solvents: (1) when an

individual sustains chronic exposure to the

solvent over a decade or more years; or (2)

when an individual sustains a severe acute

exposure to a very high level of solvent, and

suffers an accompanying loss_ of

consciousness....” (Emphasis added.). [92a].

The foregoing quote originated with GE’s and

Kaiser’s citation to a sole publication by a physician that

it presented during the Daubert hearing. GE and Kaiser

knew Mr. Carlson’s trial proof was that he had “passed

out”, while working with the solvents. Culling Mr.

Carlson’s claim from the other plaintiffs removed from

the Schude/ Court’s consideration this agreed upon

scientific proof as to the other plaintiffs. Trial tactics

such as this would not be an unusual occurrence in

multi-plaintiff litigation.

A second distinction is that Dr. Goldstein used the

differential diagnosis process to arrive at his causation

opinion as to Mr. Carlson. [90a-106a]. Dr. Goldstein

reviewed all of Mr. Carlson’s health history from birth

forward, e.g. 102a J 48, 104a-106a, 229a. He reviewed

not only Mr. Carlson’s records, but also those of Dan

Skeman’. [92a]. On the other hand, Dr. Goldstein did

not engage in the differential diagnosis process with

any remaining plaintiff; he did not review the health

history or medical records of any of the other plaintiffs.

He expressed no direct opinion as to any other plaintiff.

The third key difference is that the trial judge Hon.

Fred Van Sickle found Dr. Goldstein’s opinions based

upon the differential diagnosis process “reliable” under

a Daubert analysis. Post-trial Judge Van Sickle allowed

Dr. Goldstein’s testimony to stand. Judge Van Sickle

ruled that Mr. Carlson had sufficient proof of his

neurological injury. Given that it was Dr. Goldstein,

who ultimately proved the medical causation testimony

of Mr. Carlson’s neurological injury, the post-trial

rulings of Judge Van Sickle are controlling of his claim.

Since in a Fed. Civ. R. Proc. 50 ruling, after applying

Joiner to the trial court’s decision of admissibility, Dr.

Goldstein’s opinion on the probability of Mr. Carlson's

injury the finding of sufficient of proof on one theory of a

negligence claim disposes of all the issues. See McCord

v. Maguire, 873 F.2d 1271, 1274 (9% Cir. 1989).

8 Mr. Skeman was a co-worker, who also lost

consciousness. Six weeks before working at the PCB clean

up, Mr. Skeman had a complete pre-employment history,

physical exam and laboratory testing. Dr. Lantsberger and

other physicians compared vast amount of objective before

and after exposure data on Mr. Skeman. He was like a

human guinea pig due the fortuitous employment

examination and later exposure. He was “culled” from this

multi-plaintiff dispute with an early resolution of his claim.

A fourth distinction is the record of whose claim

Dr. Goldstein used the differential diagnosis process.

For Mr. Carlson a record existed for appellate review.

Riding on Mr. Carlson’s coattails, the other plaintiffs

proceed towards verdict and appeal vis-a-vis Dr.

Goldstein with nothing more than an argument that a

parties is entitled to the benefit of any other party’s

evidence. It was not surprising the Schudel Appellate

Court found as to the other plaintiffs, Dr. Goldstein

failed to establish he was competent to express an

opinion in their cases. On the other hand, given the

extensive offer of proof that was made by Dr. Goldstein

as to his causation opinions about Mr. Carlson, and

Judge Van Sickle’s finding that the differential

diagnosis process was reliable, it is surprising and error

for a reviewing court to find this witness incompetent

as to Mr. Carlson’s individual claim.

There will always be distinctions between

individual plaintiffs in multi-plaintiff litigation.

Likewise, there will always be vexing battles over

Daubert and causation proof. If Weisgram standing for

the “law of the case doctrine” is added to the mix, there

will always be a profound lapses due process for some

plaintiffs in multi-plaintiff litigation. These simple truths

further support that in the interest of overall judicial

economy this review for certiorari should be granted.

The Ninth Circuits Carlson vs. General Electric Co.

decision is in direct conflict and thwarts the rationale

that allowing this judicial discretion to apply the “law

of case” doctrine. The doctrine is grounded in the need

for litigation to come to an end. Disimone v. Browner,

121 F.3d 1262, 1266 (9th Cir. 1997). However, this does

not mean the doctrine is applied at the expense of a

litigant’s due process rights as happened here.

Here, the Court of Appeals ruled Mr. Carlson could

not be heard in the 1995 appeal. Then in the 1999

appeal the Ninth Circuit Court of Appeals held in the

interest of judicial economy, ie. the “law of the case”,

not to consider an appellate issue because the court had

already addressed the matter, when it declined the

earlier appellate jurisdiction. That is, judicial economy

of the utmost efficiency—decide appellate issues

without the aggrieved party’s presence. This judicially

derived method of judicial economy as applied by the

Carlson Court is in direct conflict with the Fifth

Amendment, U.S. Constitution. Mr. Carlson has been

deprived of his right to recover his loss form the

established wrongful conduct of GE and Kaiser without

due process of law.

Il. In The Interest Of Judicial and Litigant

Economy The Reliable Scientific Process of

Differential Diagnosis Should Be Affirmative As

An Acceptable Means For Analyzing Proffered

Expert Opinions Under a Daubert v. Merrell

Dow, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed 469

(1993) Analysis

The Daubert originated in the Ninth Circuit. It has

been nine years since the decision. There are over 5000

federal cases that cite Daubert. In the federal system

alone there is obviously a vast difference of opinion

between not only the different panels of the Ninth

Circuit, but a vexing debate amongst the judicial bench

writing opinions in other circuits as well, concerning

how Daubert was meant to influence the admissibility

of expert witness opinions. Mr. Carlson proposes any

help in streamlining the proceedings surrounding

Daubert are should be welcome by litigants and the

bench. Over the last nine years the majority has

reached consensus on one avenue to streamline

Daubert proffers and challenges.

The majority of the circuits have acknowledged and

accepted an appropriately applied differential diagnosis

process as an acceptable methodology to support

expert opinions. Baker v. Dalkon Shield Claimants

Trust, 156 F.3d 248 (1st Cir. 1998); Zuchowicz v. United

States, 140 F.3d 381 (2™ Cir. 1998); Heller v. Shaw

Industries, Inc., 167 F.3d 146 (3"4 Cir. 1999); Kannankeril

v. Terminix International, Inc., 128 F.3d 802 (3 Cir.

1997); Westberry v. Gislaved Gummi Ab, 178 F.3d 257

(4 Cir. 1999); Moore v. Ashland Chem., Inc., 151 F.3d

269, 277-79 (5th Cir. 1998) (en banc), cert. denied, 526

U.S. 1064, 143 L. Ed. 2d 541, 119 S. Ct. 1454 (1999);

Hardyman v. Norfolk & Western Ry. Co., 243 F.3d 255

(6% Cir. 2001); Hose v. Chicago Northwestern

Transportation Co., 70 F.3d 968 (8 Cir. 1995); and

Hollander v. Sandoz Pharms. Corp. 289 F.3d°1193 (10%

Cir. 2002).

Cited as authority for accepting the differential

diagnosis process is Jn re Paoli R.R. Yard PCB Litig., 35

F.3d 717, 758 (3d Cir. 1994) where the Court observed:

"Differential diagnosis generally is a

technique that has widespread acceptance in

the medical community, has been subject to

peer review, and does not frequently lead to

incorrect results[;] it is a method that involves

assessing causation with respect to a

particular individual. As a result, the steps a

doctor has to take to make that (differential)

diagnosis reliable are likely to vary from case

to case ... . (Parenthetical in original).

Through out the accepting circuits have jurisdictions

that have acknowledged the role and reliability of the

differential process. Hardyman, 265 and also

Westberry, 266. The Ninth Circuit has not reached the

point of acknowledging the reliability and inherent

judicial efficiency the differential diagnosis process.

The decision in Schudel, 120 F.3d 991 and the present

Carlson vs. General Electric Co., et al are examples of

the resistance of the Ninth Circuit to endorse the

reliability of differential diagnosis process.

Here, Mr. Carlson’s expert witnesses all utilized the

differential diagnosis process in arriving in a scientific

manner at their respective opinions. In 1994, the first

Schudel trial court found the differential diagnosis

process as not only scientifically reliable under a

Daubert analysis, but the trial court tracked through the

through trial into the post-trial motions. A head of his

time, Judge Van Sickle focused the admissibility of Dr.

Lantsberger’s opinions for an appropriate application of

differential diagnosis process much as the trial court

did in Heller v. Shaw Industries, Inc., 167 F.3d 146 (3"4

Cir. 1999). As the Heller Court did, Judge Van Sickle

used the framework of the differential diagnosis

process to determine that portions of Dr. Lantsberger’s

opinions were not scientifically competent under

Daubert.

Despite the logic, reliability and efficiency of the

differential diagnosis process and Daubert inquiries the

Schudel and Carlson appellate courts have ignored the

differential diagnosis process. Schudel and Carlson

reflect the Ninth Circuit tendency to look at whether

peer reviewed scientific articles provide support for an

expert witness’s opinions. This obsession with

evaluating the reliability of an expert witness's opinions

based upon the number of scientific articles is

consuming the time of the trial bench and litigant’s

counsels for little appreciable return on the time

invested.

Mr. Carlson submits Judge Van Sickle did not

abuse his discretion in finding the differential diagnosis

process was scientifically reliable. On the other hand,

the Schude/ Court in holding as a matter of law that

there were only two studies supporting Dr. Goldstein’s

and Dr. Morton’s is utterly without foundation. Here

the matter in question is the subject of an independent

of litigation peer reviewed journal. [79a-89a]. In light of

the foregoing fact it makes no sense for the Schudel

Court to hold as a matter of law there were only two

scientific articles. It is also socially dangerous.

eee ee

It is undisputed that independent of the litigation

the State of Washington’s Occupational Epidemiologist

and a physician from the CDC published in peer

reviewed scientific journal their investigation and

findings about the incident that involved Mr. Carlson.

Dr. Milham and Dr. Houk independent of this litigation

determined he suffered a neurological injury due to his

exposure to these known toxic chemicals. The title of

article is telling — Organic Solvent Encephalopathy: An

Old Hazard Revisited. (Herein Milham Article) [79a-

89a]. This scientific publication is unquestionably on

point in this litigation on the state of scientific

knowledge about organic solvents. The Introduction to

the Milham Article begins with “Protecting workers

against the effects of organic solvent exposure has been

an occupational health priority because these

compounds can cause neurologic damage [Morrow et

al., 1990] and death [Browning, 1965]. . .”. (emphasis

added) The Milham Article list 25 scientific

publications as references. [87a-89a]. There was no

record before the Ninth Circuit that this particular

publication by Drs. Milham and Houk was scientific

flawed.

Dr. Milhem used the differential diagnosis process

in arriving at his opinions. [127a-142a]. The Schudel

and Carlson Courts have paid this no mind. It creates

chaos and distrust in the judicial process when such an

astounding disregard of independent scientific trumps

what was otherwise a systematic and reasonable

approach to a Daubert analysis. The Ninth Circuit

Court of Appeals reluctance to recognize the

differential diagnosis process as herein demonstrated

leaves the district court bench and litigants with

cumbersome and unpredictable problem.

What the Ninth Circuit has concluded about organic

solvents, including TCA and PERC, is socially

dangerous. This essentially a judicial discounting of

governmental investigation and control of hazardous

chemicals is a notably reason why this writ for certiorari

should be accepted. Mr. Carlson points out the

following in light of the foregoing.

The poisoning of more than a dozen individuals

occurred because corporations that should know better

ignored multiple safety principles. The chemicals

involved in this case are regulated by Occupational

Safety and Health Administration (Herein “OSHA”).

The chemicals involved because of their known danger

have specific requirements to limit the amount of

exposure. See 29 CFR § 1910.1000 (a)(2) and Table Z. It

was the violation of these worker protection laws that

caused the jury to find GE and Kaiser to be negligent.

GE and Kasier withheld from the labors the Material

Data Safety Sheets (Herein MSDS).

GE and Kaiser told the labors they were using

cleaning products like “409”. The labors, Mr. Carlson

included, were lead to believe the paper mask and suits,

thin rubber galoshes, and Playtex gloves were adequate.

[122a]. Mr. Carlson, and the other labors, were working

in a basement. MSDS provided with these products

warned clearly that neurologic injury could occur

unless adequate ventilation or respirators were used,

especially in low-lying areas.” [81a]. It was observed

that “Solvent Syndrome is a condition that has been

known for more than 100 years.” [210a]. The federal and

state governments have determined organic solvent

exposure is a true human health risk and enacted

multiple requirements intended to reduce the risk of

injury.

These organic solvents are regulated by OSHA and

the limit exposure to these organic solvents for a reason.

For example limiting exposure to Tetrachloroethylene

(PERC) to 5 minutes in any three hours is to prevent

injury. See 29 CFR § 1910.1000 (a)(2) and Table Z therein.

Had the Ninth Circuit Court of Appeals looked at the

proffers of Dr. Goldstein [90a-106a], Dr. Milhem [127a-

142a], Dr. Morton [a107-126a], Dr. Lantsberger [143-

164a], Dr. Cripe [174a-190a] and Dr. Beaty [165a-173a]

the Court would have known each witnessed used the

differential diagnosis process to make a scientifically

rationale analysis about the probable degree of exposure.

That is, for PERC the exposure should have been for less

than 15 minutes spread out over the 10 hour work days,

but Mr. Carlson was because he only had a paper mask

was exposed for hours to PERC. .

Mr. Carlson could fill this petition with what the

Ninth Circuit either overlooked or ignored in the

respective offers of proofs, but that is not the point of this

request for certiorari. There is just no reason for the -

Ninth Circuit to continue to be resistant to the

differential diagnosis process. The other circuits have

found it predictable, efficient and a manageable means to

admit or exclude expert testimony. From litigants

standpoints it is a matter of time, resources and

economic.

In studiously avoiding the differential diagnosis

process the Schudel Court opined the plaintiffs’ proofs

were inadequate because the expert witnesses used

“extrapolation. 120 F.3d p. 996-97. Meaning no

disrespect of the Court, these uneducated comments on

“extrapolation” by the Schudel/ unnecessarily increased

the cost of the litigation and further complicated the

published case law where chemicals are involved. It was

obvious in 1997, whatever the Ninth Circuit Court of

Appeals thought about the quality of plaintiffs’ proofs

suggesting that for the evidence to be scientifically

competent scientific research was needed.

This is a negligent conduct case. It has never been a

products liability case. The Environmental Protection

Agency (herein “EPA”), CDC and OSHA have

recognized the plethora of research that has been done

on this chemicals. The governments know these

chemicals can injure and kill. That is why they are

regulated. Suggesting that plaintiffs need to have

“human” studies to prove at what level these chemicals

injure and kill is not a judicially reasonable standard.

[131a, 197a-198a, 214a-215a, 236a].

This is a diversity action. Under Washington State

law there is no requirement that Mr. Carlson show

which chemicals injured him. Intalco Aluminum v. L &

I 66 Wn. App. 644, 833 P.2d 390 (1992). Likewise, when

the judiciary recognizes and uses the differential

diagnosis processes in negligent conduct litigation the

waste of time of potential proof requirements is

i RE eS Lal Se Saks att,

acknowledged?. See Hardyman v. Norfolk & Western

Ry. Co.,, 243 F.3d at p. 265. (requiring a plaintiff to

establish a dose/response relationship makes no sense

and essentially forecloses plaintiffs from recovery.)

In the interest of judicial economy, for predictability

and feasibility Mr. Carlson request his writ of certiorari

be accepted to review reliability of the differential

diagnosis process in a Daubert analysis.

Ill. If Rules 49(a) and 50 Are To Be Used Together

There Are, And If Not, There Should Be Certain

Ground Rules Enforced To Promote Just,

Speedy, And Inexpensive Resolutions Of

Disputes

A natural question is whether post-trial does a

consistent Rule 49(a) verdict, in any manner constrain

post-trial proceedings. Carlson observes, if Rule 49(a) is

not used with Rules 50(b), then there is no point in Rule

49(a). In Weisgram v. Marley Co., 528 U.S. 440, 120 S.

Ct. 1011; 145 L. Ed. 2d 958 (2000) this Court recognized

it was in keeping with the Civil Rules of Procedure and

due process to permit the Court of Appeals to dismiss a

claim after resolving a Rule 50 proceeding.

9 Mr. Carlson is not advocating that “dose” evidence is

always a waste of time. It may be a necessary and relevant

point in some products liability case. But in a negligence

claim based upon the failure to provide safety equipment in

the face to the defendant failing to collect the statutory air

samples specificity as to dose is not critical. Carlson had

proof the levels of solvents were 5 to 10 times the

permissible exposure limit levels set by the state and federal

governments.

The same logic should apply, when the trial court

finds in favor of a plaintiff in a Rule 50 proceeding,

wherein the court found that at least one of a party’s

theories in a single negligence claim was supported by

substantial evidence. The Schudel, 120 F.3d 191 Court

specifically declined to hear Mr. Carlson’s appeal. The

status of the record was that Judge Van Sickle found

sufficient evidence to support the negligence claim.

The trial court did not have the jurisdictional authority

to order a new trial on what GE and Kaiser waived

with agree to a Rule 49(a) verdict form. If GE or Kaiser

wanted the jury to divide the damages among Mr.

Carlson’s body parts then it was their obligation to

either request or object. They did neither.

In McCord v. McGuire, 873 F.2d 1271, 1274,

amended 885 F.2d 650 (9th Cir.1989) Judge Kozinski

observed in affirming a plaintiff jury verdict when a

defendant asserted a plaintiff only proved four of their

eight theories of negligence:

Maguire nevertheless contends that the jury

may have based its verdict solely on the four

allegedly unsubstantiated factual theories. This

is a legitimate concern. However, Maguire's

failure to request a special verdict as to each

factual theory in the case prevents him from

pressing this argument on appeal. (Footnote

omitted)

873 F.2d at p. 1274.

This request for certiorari should be accepted to clarify

that a Rule 49(a) verdict in face of a Rule 50 motion will

receive the same treatment as in Weisgram Vv. Marley

Co. Otherwise, there is no point stating in Rule 49(a)

that the failure to object or request a special verdict is a

waiver of the issues that were or could have been listed

in the special verdict form.

CONCLUSION

Justice was not done for Merlin E. Carlson, Jr. Had

his case been tried in state court, where he started it, the

matter would be long over. Instead, it is thirteen and

half years since he was poisoned. The justice he is due

has been delayed because of confusion and conflict in

the federal court system. The matters that Carlson

raises are probably not unique to him given the conflict

in Circuits and within the Ninth Circuit Court of

Appeals.

Along with these important matters of federal

questions, this Court should exercise its supervisory

authority to insure that in multi-plaintiff litigation that

no single plaintiff has a diminishment of due process in

the interest of judicial economy. For reasons set forth

above, Petitioner Carlson respectfully, request that this

Court grant their Petition for a Writ of Certiorari.

Respectfully submitted this 23 day of August

2002.

Marcia M. Meade, WSBA #11122

Attorney for Petitioner

Merlin E. Carlson, Jr.

APPENDICES

APPENDIX A

Merlin E. Carlson, Jr. v. General Electric and Kaiser

Aluminum and Chemical Corp.,___ F3d___

(9th Cir. 2002) (Memorandum) ........:-sssesssesseressersesseeeneens Al

Schudel, et al., v. General Electric and Kaiser

Aluminum and Chemical Corp., 120 F.3d 991

(9 Cir 1997) (Opinion) .......e-sssssssssseensseeeeetssssseeeessnneet AS

APPENDIX B

Schudel, et al., v. General Electric and Kaiser Aluminum and

Chemical Corp., No. 92-00081, (E.D. Wash., Nov. 25, 1994)

(Order Re: Post-Trial MoOtions)........sssscesseeeessesseeeneenensees A21

Schudel, et al., v. General Electric and Kaiser Aluminum and

Chemical Corp., No. 92-00081, (E.D. Wash., November 25,

1994) (Order Re: Dismissing Certain Claims, Inter Alia) A31

APPENDIX C

Schudel, et al., v. General Electric and Kaiser Aluminum and

Chemical Corp., No. 92-00081, (E.D. Wash,July 13, 1994)

(Judgment in a Civil Case).......-sssssecrssrssernreesssrsssensennes A59

Schudel, et al., v. General Electric and Kaiser Aluminum and

Chemical Corp., No. 92-00081, (E.D. Wash, July 13, 1994)

(Special Verdict Carlsom).........-sssssssssssssssenrernsernseresennree A62

APPENDIX D

US. Constitution Seventh Amendment ..........-.-::s+sse10 A64

Fed R.Civ.P. 49(a).....cscssssesersessesssssssesrsesesssscnnensnenenssneres A64

Fed.R.Civ.P. 50(a)(b) 1991 version ..........-sssssssesrereneresees A65

2B. U.S.C. § 2072....n..-rnsssesesssseersesscnessensnneccerorenessnnenencocees A66

US. Constitution Fifth Amendment..........----+ss+ss+++ A67

APPENDIX E

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081 (E.D. Wash, June 27,

1994) (Plaintiffs’ Memorandum On Potential Instructional

Error By Attempting To Define Area Of Injury).................. 68

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081(Jury Instructions

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081 (E.D. Wash, December

28, 1994) (Affidavit Of Marcia M. Meade In Response To

Defendants’ Opposition To The FRCP 54(B) Language

[w/ attachments])..................::cscsscsssesresreeeeeesersneserensensens A74

Organic Solvent Encephalopathy: An Old Hazard

Revisited, Am. J. Ind. Med., Vol. 22 (1922)..............::6+ A79

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081 (E.D. Wash, January 18,

1994) (Offer Of Proof Of Daniel Goldstein)...................... A90

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081 (Declaration of Daniel

Goldeteln, MEDD.) .......<0+ dexccosrvsnensnssneevenears oereharenel A103

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081 (E.D. Wash, January 18,

1994) sands Of Proof 7 William E. Morton, M.D.,

Ph.D.)... coneeu9 wneaagshumnnicedigieessaninaemnanaina ...A107

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081 (E.D. Wash, March 7,

1994) (Declaration Of Samuel Milham, Jr. On Offer Of

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081 (E.D. Wash, March 7,

1994) (Offer Of Proof By Plaintiffs Re: The Testimony Of

Paula A. Lantsberger, M.D.)............::::::::eseeeeseessereretens A143

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081 (E.D. Wash, January 18,

1994) (Declaration of Marcia M. Meade on Declaration of

Dr. Beaty (Offer of Proof of Edward Thatcher Beaty,

1) re sercspsobdabineansanvannnanensswwenorsanvessvenctwansvoneesees A165

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081(E.D. Wash, January 18,

1994) (Offer of Proof of Lloyd I. Cripe, Ph.D.)............-- A174

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081 (E.D. Wash, December

21, 1998) (Declaration Of Daniel M. Goldstein, M.D. On

Scleudel Unquity)............::ssccecececeeeseeeeneteneneereseneneneeenene Al91

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081 (E.D. Wash, December

21, 1998) (Affidavit Of Dr. William Morton)............----A200

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081 (E.D. Wash, Dec. 21,

1998) (Declaration Of Paula A. Lantsberger, M.D.)........ A207

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081 (E.D. Wash, December

21, 1998) (Declaration Of Dr. Kaye H. Kilburn, M.D.)...A212

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081 (E.D. Wash, January 5,

1999) (Declaration Of Geoffrey A. Kelafant, M.D.).......A222

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081 Trial Testimony of Daniel

Goldstein, M.D. ST ieee

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081 Trial Testimony of Paula

RIE, DE Bee 5 sic evn cdagsreneminnitaseemnceeomatenterintons A249

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081 Trial Testimony of Lloyd

1. Cripe, PR.D.............cssscsssesessesssesseesssssesssesssssesseoseeeees A258

Schudel, et al., v. General Electric and Kaiser Aluminum

and Chemical Corp., No. 92-00081 Trial Testimony of

SF . Be. Bin vn 0cstscnerrsvseisecsinshepemecanatsonnees A263

-iv-

DAVID SCHUDEL, et al.,

Plaintiffs,

and No. 99-336089

MERLIN E. CARLSON, JR.,

Plaintiff-Appellant, | D.C. No.

v. CV-92-00081-FVS

GENERAL ELECTRIC CO., a

foreign corporation, KAISER MEMORANDUM

ALUMINUM AND CHEMICAL

CORPORATION, a _ foreign

corporation,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Washington. D.C.

No. CV-92-00081-AAM, D.C. No. CV-92-00081-AAM.

Alan A. McDonald, District Judge, Presiding.

Argued and Submitted

September 11, 2001—Seattle, Washington

Filed May 10, 2002 7

Before: KOZINSKI and GOULD, Circuit Judges, and

SCHWARZER’, Senior District Judge.

*The Honorable William W Schwarzer, Senior United

States District Judge for the Northern District of California,

sitting by designation.

Merlin Carlson appeals from the judgment dismissing his

claim for respiratory and neurological injuries allegedly caused

by defendants’ negligence! Following trial before Judge Van

Sickle, the jury returned a verdict for Carlson and his co-

plaintiffs. The district court granted defendants’ motion for

JNOV with respect to Carlson's respiratory injuries; with

respect to his neurological injuries, it vacated the verdict and

granted a new trial on the ground that the verdict had been

tainted by inadmissible evidence on the respiratory injuries.

1 This disposition is limited to the Carlson appeal. The

Williams/Schudel appeal is the subject of a separate Memorandum

disposition.

A-2

On appeal we held that, in the absence of a final judgment, we

lacked appellate jurisdiction and remanded. Schudel v.

General Electric Co., 120 F.3d 991 (9th Cir. 1997).

On remand, Judge McDonald let stand the JNOV with

respect to Carlson's respiratory injuries. The court ordered

Carlson to show cause only why the neurological injury

component of his claim should not be dismissed if based on

the same evidence found insufficient on the prior appeal. The

court concluded that Carlson had no new evidence to offer.

Because on co-plaintiff Deborah Guaragna-Williams'

(Williams) appeal we had held the same evidence offered at

trial to be inadmissible under Daubert v. Merrell Dow

Pharmaceuticals, 509 U.S. 579, 125 L. Ed. 2d 469, 113 S.

Ct. 2786 (1993), and Daubert v. Merrell Dow

Pharmaceuticals, 43 F.3d 1311 (9th Cir. 1995)), the district

court entered — against Carlson.

The JNOV

Carlson contends that the judgment dismissing the

respiratory injury component of his injuries was improper. As

we observed on the prior appeal, Carlson alleged a single

claim of negligence, not separate claims for neurological

injury and respiratory injury. Schudel, 120 F.3d at 994. Under

Rule 50(a)(1), the court "may grant a motion for judgment as

a matter of law against [a] party with respect to a claim... ."

FED. R. CIV. P. 50(a)(1) (emphasis added). The court lacks

authority to grant judgment with respect to an issue when

substantial evidence supports the claim. McCord v. Maguire,

873 F.2d 1271, 1273-74 (9th Cir. 1989) ("When a general

verdict may have rested on factual allegations unsupported by

substantial evidence, we will uphold the verdict if the evidence

is sufficient with respect to any of the allegations."). Thus, we

must determine whether there is substantial evidence to

support a verdict on either respiratory or neurological injury

proximately caused by defendants’ negligence.

2 Rule 50 was amended in 1991, changing the terminology from

JNOV to judgment as a matter of law.

Neurological injury

On the prior appeal we reviewed the sufficiency of the

neurological causation testimony of Dr. William Morton, Dr.

Daniel Goldstein and Dr. Paula Lantsberger in the context of

defendants’ appeal from the jury verdict in favor of Carlson's

co-plaintiff Williams. We found that none of the testimony

passed muster under Daubert. Schudel, 120 F.3d at 996-97.

Dr. Morton's and Dr. Goldstein's testimony lacked the

requisite reliability. Dr. Lantsberger's testimony lacked

relevance, because she testified only to a possibility, not a

probability, of consequential brain damage to Williams.

As a general rule, we will not reconsider questions that

another panel has decided on a prior appeal in the same case.

Disimone v. Browner, 121 F.3d 1262, 1266 (9th Cir. 1997).

All plaintiffs relied on the same expert testimony. The lack of

reliability of Dr. Morton's and Dr. Goldstein's testimony

therefore undermines Carlson's case as it did Williams’. With

respect to Dr. Lantsberger, the record discloses that her

testimony respecting Carlson was equally lacking in relevance.

She testified that "I believe it was the chemicals that [Carlson]

was exposed to causing him problems,” that his "brain injuries

are related to his exposure," and that "I believe that [his

personality change] is associated with his exposure." Because

this testimony proves at most a possibility (not a probability)

of consequential injury, we conclude that there is no

substantial neurological symptom causation evidence.

Respiratory Injury

Judge Van Sickle granted defendants’ post-trial Rule 50

motion, holding that a reasonable jury could not have found

for Carlson on the respiratory (non-neurological) component

of his claim. On appeal, we did not address the sufficiency of

the expert testimony relating to this component. On remand,

Judge McDonald treated Judge Van Sickle's order as

remaining in effect. Having found no evidence supporting the

neurological component, he directed entry of judgment for

defendants on Carlson's entire claim. Given this procedural

posture, we must determine whether Judge Van Sickle

ila

correctly set aside the jury verdict, finding that no reasonable

jury could have concluded that defendants proximately caused

Carlson's respiratory injury.>

Judge Van Sickle correctly found that Carlson did not

demonstrate at trial that defendants caused his injuries.

Because his injuries involved obscure medical factors and

laypeople could not determine the injuries’ cause without

resorting to speculation or conjecture, expert testimony was

required to establish causation. Bruns v. PACCAR, Inc., 77

Wn. App. 201, 890 P.2d 469, 477 (Wash. App. 1995). For

the reasons stated above, Drs. Morton's and Goldstein's

causation testimony was unreliable and therefore inadmissible

under Daubert. Dr. Lantsberger did not exhibit the requisite

certainty in her causation testimony. Under established

Washington precedent, medical testimony must show that the

act complained of more probably than not caused the injury.

O'Donoghue v. Riggs, 73 Wn.2d 814, 440 P.2d 823, 830

(Wash. 1968). An expert may phrase her opinion about

causation in a variety of ways--such as “high probability,"

"reasonable scientific certainty," or "firmly concluded"--but

she must provide the jury with "the required level of legal

certainty." Bruns, 890 P.2d at 477. Dr. Lantsberger testified

only that exposure to the work site was "the joining factor of

all the physical problems" and that she "believed [the

symptoms] are associated with the exposure." Because these

articulations fall short of the requisite level of certainty (i.e.,

more probable than not), we must affirm the judgment against

Carlson.

The judgment is affirmed. AFFIRMED.

3 Defendants have not raised an issue concerning the admissibility

of evidence on the respiratory injury received at the trial.

A-5

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID SCHUDEL, e¢ al.,

Plaintiffs,

and No. 95-35092

DEBORAH GUARAGNA-

WILLIAMS, D.C. No.

Plaintiff-Appellee, CV-92-00081-

v. FVS

GENERAL ELECTRIC CO.,

a foreign corporation; KAISER

ALUMINUM AND CHEMICAL

CORPORATION, a foreign

corporation,

Defendants-

Appellants.

DAVID SCHUDEL; DANIEL

GLASS; MERLIN E. CARLSON;

TIMOTHY SCHUDEL; SANDRA No. 95-35145

SCHUDEL, husband and wife, and

the marital community composed D.C. No.

thereof, KATHRENE RAE CV-92-00081-FVS

HOWELL; CRAIG A.

THOMPSON; JOHN HOPKINS; OPINION

RUTH HOPKINS, husband and

wife, and the marital community

composed thereof,

Plaintiffs-Appellants,

GENERAL ELECTRIC CO.,

a foreign corporation, KAISER

ALUMINUM AND CHEMICAL

CORPORATION, a foreign

corporation,

Defendants-Appellees.

eee eee

Appeals from the United States District Court

for the Eastern District of Washington

Fred Van Sickle, District Judge, Presiding

Argued and Submitted

October 8, 1996—Seattle, Washington

Filed July 23, 1997

Before: James R. Browning, Dorothy W. Nelson, and

Ferdinand F. Fernandez, Circuit Judges.

Opinion by Judge Browning

The court of appeals dismissed appeals, vacated a

judgment, and reversed orders of the district court. The court

held that in considering a Rule 50(b) post-verdict motion for

judgment notwithstanding the verdict (JNOV), a district court

should not ignore erroneously admitted evidence.

Appellees David Schudel, Deborah Williams and others

sued appellants General Electric Co. and Kaiser Aluminum

and Chemical Corp. for damages, alleging injuries from

exposure to toxic substances and loss of consortium.

At trial, the only evidence on causation on behalf of

appellants Daniel Glass, Craig Thompson, and David, Tim,

and Sandra Schudel (Schudel plaintiffs) was the testimony of

Dr. Paula Lantsberger. She based her expert opinions on two

theories: specific condition causation and “whole person

aggravation.”

In addition to Dr. Lantsberger, Drs. Morton and

Goldstein testified on neurological symptom causation on

behalf of Williams. The district court approved their reliance

on interview data relating to the plaintiffs’ symptoms that was

collected by Diane Nebel while she was investigating an

incident of Legionnaire’s disease at Kaiser’s facility.

Drs. Goldstein and Lantsberger testified that the Nebel

data were the kind that toxicologists consider reliable and

regularly rely on. Dr. Morton testified that Williams suffered

from brain damage that was “more probably than not” caused

by exposure to solvents (TCA and Perc) that General Electric

had used to clean up toxic substances at Kaiser’s facility.

Dr. Goldstein conceded that none of the organic solvents

A-7

involved in this case had been proven to be neurotoxic, that it

would be improper to make inferences as to the toxicity of

TCA and Perc based on the toxic nature of other solvents, and

that repeated exposure to organic solvents over a long period

must be documented to establish a causal relationship. Two

studies cited by Dr. Goldstein (Altman and Kalifant studies)

involved TCA and Perc. The Altman study found no

relationship between exposure to Perc and the brain damage

or loss of consciousness alleged by the plaintiffs. The Kalifant

study involved long-term, repetitive exposure to TCA at high

levels.

A jury returned verdicts for the plaintiffs. On defense

motions for JNOV or a new trial, the district court affirmed

the verdict for Williams, but granted JNOV with respect to

respiratory injuries alleged by appellant Merlin Carlson, and

as to neurological injuries asserted by appellant Kathrene

Froese, John Hopkins, and Ruth Hopkins (Froese plaintiffs).

The court vacated the verdicts for them on the ground that

they were “tainted” by evidence of injuries as to which JNOV

had been granted, and ordered a new trial. Lastly, the court

granted JNOV on all the claims of the Schudel plaintiffs. In

doing so, the court exercised Dr. Lantsberger’s testimony

relating the “whole person aggravation” theory, having

concluded that it was inadmissible. Both sides appealed.

[1] The court of appeals has jurisdiction to review final

judgments on entire claims, not on individual issues. An order

adjudicating only one issue that is not determinative of an

entire claim is not appealable.

[2] Litigants who advance a single legal theory of

liability applied to one set of facts allege a single claim.

Carlson and Froese alleged a single claim of negligence, not

separate claims for neurological injury and respiratory injury.

The Hopkinses alleged claims for negligence and loss of

consortium, not separate claims for neurological injury and

respiratory injury as to each claim.

[3] The district court granted JNOV as to issues related

to certain injuries allegedly suffered by tht plaintiffs because

A-8

of the defendants’ negligence. The court of appeals had no

jurisdiction to review the district court’s rulings on those

issues because the claims for negligence and the derivative

claims for loss of consortium were not finally determined.

The order granting a new trial was also interlocutory and not

immediately appealable.

[4] When deciding a JNOV motion, a trial court may not

ignore evidence erroneously admitted at trial. Excluding

evidence after the verdict is unfair to a party who may have

relied on the determination that the evidence was inadmissible.

[5] The record should be taken as it existed when the trial

closed.

[6] The district court properly concluded that Dr.

Lantsberger’s testimony based on the “whole person

aggravation” theory should have been excluded. However,

once the jury rendered its verdict based on the improperly

admitted evidence, the district court erred in excising that

evidence when ruling on the JNOV motion. Considering all

the evidence, there was sufficient evidence to support the

verdict in favor of the Schudel plaintiffs.

[7] Nonetheless, these verdicts could not stand. The

district court erred in denying the defendants’ motion for a

new trial. A new trial should be granted when the erroneous

admission of evidence affected the substantial rights of the

parties. Dr. Lantsberger’s testimony was the only evidence of

causation; its erroneous admission was undoubtedly

prejudicial.

[8] The trial judge must determine that proposed

scientific expert testimony will be both reliable and relevant.

[9] Scientific knowledge is reliable if it is grounded in the

methods and procedures of science and connotes more than

subjective belief or unsupported speculation. In determining

reliability, the focus must be solely on principles and

methodology, not on the conclusions that they generate.

[10] Evidence of scientific knowledge is relevant if the

reasoning or methodology properly can be applied to the facts

in issue. A court’s determination of relevance must consider

A-9

the applicable substantive standard. Under Washington tort

law, a plaintiff must show that the act complained of

“probably” or “more likely than not” caused the subsequent

disability.

[11] The Nebel data provided the basis for much of the

scientific testimony presented by Williams’ experts. [12] The

district court acted within its discretion in approving the use

of the data by Williams’ expert witnesses. Dr. Morton’s

testimony met the relevance requirement. However, it did not

meet the requirement of reliability.

[13] Dr. Morton’s conclusions were based on

extrapolations from studies that involved solvents other than

TCA or Perc and examined long-term exposure at relatively

low concentrations, or short-term exposure at very high

concentrations, rather than short-term, moderate-level

exposure sustained by Williams. Dr. Morton did not establish

that it was scientifically acceptable to draw general

conclusions about the neurotoxicity of TCA and Perc from

studies of other chemicals. .

[14] The district court erroneously reasoned that because

there was evidence that acute exposure to TCA and Perc can

cause toxic encephalopathy, whether Williams’ exposure was

sufficient to cause her symptoms was a question for the jury.

Williams’ exposure was neither long enough nor intense

enough to fall within the ranges described in the studies Dr.

Morton relied upon. Extrapolation was necessary to make the

studies relevant, and there was no showing that the necessary

extrapolation was scientifically acceptable.

[15] Dr. Goldstein acknowledged that the mechanism of

neurotoxicity from TCA and Perc had not been demonstrated.

[16] Dr. Lantsberger’s testimony failed to meet the relevance

requirement. She testified that it was only a “possibility,” not

a “probability,” that Williams suffered from brain damage

from exposure to solvents. Dr. Lantsberger admitted that she

could not testify to a specific cause and effect relationship

between Williams’ exposure and health problems. She relied

on a “whole person aggravation” theory without establishing

A-10

that it had a scientific basis. [17] Dr. Lantsberger’s testimony

regarding the hazards of TCA and Perc was inadmissible.

Like Dr. Goldstein, she relied on the Altman and Kalifant

studies to reach her conclusions, and admitted that medical

science had not determined the effects of short-term exposure

to the solvents.

[18] Only one of the expert witnesses whose testimony

was not challenged provided causation testimony, and it

related only to Williams’ respiratory injury. [19] Considering

all the evidence admitted at trial, the district court properly

denied the defendants’ JNOV motion with respect to

Williams. However, admission of the challenged testimony

was prejudicial because it was the sole causation evidence

with respect to Williams’ neurological symptoms.

BROWNING, Circuit Judge:

This diversity case involves claims for damages from

negligence and loss of consortium against defendants General

Electric Company and Kaiser Aluminum and Chemical

Corporation. Kaiser contracted with General Electric to clean

up polychlorinated biphenyls (PCBs) at Kaiser’s Trentwood

facility in Spokane, Washington. Nine of the ten 0m

were employed by General Electric on the cleanup.* These

plaintiffs alleged they developed various neurological and

respiratory problems from exposure to two cleaning solvents,

trichloroethane (TCA) and perchloroethylene (Perc).

A jury returned verdicts for the plaintiffs. The defendants

moved for JNOV or new trial. The district court affirmed the

verdict in favor of one plaintiff, Deborah Williams. The court

granted JNOV with respect to respiratory injuries» asserted

by Merlin Carlson (“Carlson”) and with respect to

4 The tenth plaintiff, Sandra Schudel, did not work at the site, but

asserted a loss of consortium claim as the wife of plaintiff Tim

Schudel.

5 With respect to Carlson, the term “respiratory injuries” applies to

respiratory injuries, fatigue, overall body pain, and all other all

alleged injuries that do not fall within the term “neurological

”

A-11

neurological injuries© asserted by Kathrene Froese, John

Hopkins, and Ruth Hopkins (“the Froese plaintiffs”). The

court ordered a new trial with respect to injuries of Carlson

and the Froese plaintiffs as to which JNOV had not been

granted. Finally, the court granted JNOV on all claims

asserted by the five remaining plaintiffs (“the Schudel

plaintiffs”’).

Defendants appeal the verdict in favor of plaintiff

Williams. The other plaintiffs appeal the granting of motions

for JNOV or new trial. We address four issues: (1) whether

the district court had jurisdiction over the defendants’ motions

for JNOV or new trial; (2) whether we have jurisdiction to

review the district court’s order for JNOV and new trial as to

Carlson and the Froese plaintiffs, (3) whether the district

court erred by granting JNOV against the Schudel plaintiffs

without considering expert testimony the court concluded

after trial had been erroneously admitted; and (4) whether the

district court properly admitted expert testimony on behalf of

plaintiff Williams.

L District Court Jurisdiction Over the Defendants’

Motions For JNOV or New Trial

Plaintiffs argue the district court lacked jurisdiction to

consider defendants’ motions for JNOV or new trial because

the motions were not properly served.8 When the motions

were filed, Federal Rules of Civil Procedure 50 and 59

required the defendants to both file and serve such motions

within ten days after entry of judgment.? Defendants filed the

6 With respect to these plaintiffs, the term “neurological injuries”

applies to neurological injuries, headaches, rashes, and all other

alleged injuries that do not fall within the term “respiratory

injuries.”

7 David Schudel, Tim Schudel, Sandra Schudel, Daniel Glass, and

Craig Thompson.

8 Plaintiff Carlson does not raise this issue; his attorney was timely

served.

9 Soe former Fed. R. Civ. P. 50(b) (“Such a motion [for judgment

as a matter of law] may be renewed by service and filing not later

than 10 days after entry of judgment.”): former Fed. R. Civ. P.

A-12

motions and delivered them to Federal Express for service on

the tenth day after judgment. While personal delivery or

delivery to the U.S. Postal Service would have satisfied the

service requirement, delivery to Federal Express did not.

Magnuson v. Video Yesteryear, 85 F.3d 1424, 1431 (9% Cir.

1996).

Rules 50 and 59 were amended in 1995, however, to

require only that such motions be filed, not served, no later

than 10 days after entry of judgment. See Fed. R. Civ. P.

50(b), 59(b). The amendments took effect December 1, 1995,

and “govern all proceedings in civil cases thereafter

commenced and, insofar as just and practicable, all

proceedings in civil cases then pending.” §. Ct. Order,

Amendments to the Federal Rules of Civil Procedure (Apr.

27, 1995).

This proceeding was pending on December 1, 1995, and

no prejudice will result from application of the amendments.

All parties have briefed the substantive, non-jurisdictional

arguments in detail. No additional action on the part of the

court or the parties is required to proceed. We have applied

amended federal rules of appellate procedure retroactively in

similar circumstances. see Schroeder v. McDonald, 55 F.3d

454, 459-60 (9" Cir. 1995); Wallis v. J.R. Simplot Co., 26

F.3d 885, 888 (9th Cir. 1994), and do so here.

Il. Appellate Jurisdiction Over Order Granting

JNOV and New Trial to Carlson and the Froese Plaintiffs.

The district court granted JNOV with respect to

respiratory injuries allegedly sustained by Carlson and with

respect to neurological injuries allegedly sustained by the

Froese plaintiffs. The court vacated the verdicts for these

plaintiffs on the ground that they were’ “tainted” by the

evidence of the injuries as to which JNOV had been granted,

and ordered a new trial as to Carlson’s neurological injuries

and the Froese plaintiffs’ respiratory injuries. The court

certified appeals from the orders for new trial pursuant to

59(b) (“A motion for a new trial shall be served not later than 10

days after the entry of judgment.”).

A-13

Federal Rule of Civil Procedure 54(b).!0

[1] We have jurisdiction to review final judgments on

entire claims, not on individual issues. An order adjudicating

only one issue that is not determinative of an entire claim is

not appealable even if a district court certifies the order under

Rule 54(b). Arizona State Carpenters Pension Trust Fund v.

Miller, 938 F.2d 1038, 1039 (9" Cir. 1991). We must

determine ey whether a certified judgment is final

as to a particular claim. 1 Jd.

[2] Litigants who advance a single legal theory of

liability applied to one set of facts allege a single claim.

Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 743 (1976).

Carlson and Froese alleged a single claim of negligence, not

separate claims for neurological injury and respiratory injury.

Similarly, the Hopkinses alleged claims for negligence and

loss of consortium, not separate claims for neurological injury

and respiratory injury as to each claim.

[3] The district court granted JNOV as to issue related

to certain injuries allegedly suffered by plaintiffs because of

defendants’ negligence. We have no jurisdiction to review the

court’s rulings on these issues because the claims for

negligence and the derivative claims for loss of consortium

have not been finally determined. The order granting new

trial is also interlocutory and not immediately appealable.

10 Under Fed. R. Civ. P. 54(b), when a lawsuit involves multiple

claims or multiple parties, a district court “may direct the entry of a

final judgment as to one or more but fewer than all the claims or

parties only upon an express determination that there is no just

reason for delay and upon an express direction for the entry of

judgment.”

11 Carlson and the Froese plaintiffs argue the standard of review is

not de novo, but abuse of discretion. We review the certification of

an appeal under Rule 54(b) for abuse of discretion. Texaco, Inc. v.

Ponsoldt, 939 F.2d 794, 797 (9" Cir. 1991). Even though a

decision is certified under Rule 54(b), however, we must

independently ensure that we are dealing with a final judgment

before exercising jurisdiction. Arizona State Carpenters, 938 F.2d

at 1039.

A-14

Allied Chem. Cor. v. Daiflon, Inc., 449 U.S. 33, 34 (1980);

Roy v. Volkswagenwerk Aktiengesellschaft, 781 F.2d 670,

671 (9 Cir. 1985). 12

Ill. Excising Testimony in Granting JNOV

The Schudel plaintiffs argue the district court erred in

excising the previously admitted testimony of Dr. Paula

Lantsberger before granting defendants’ motion for JNOV.

We agree.

Dr. Lantsberger was the only witness on causation on

behalf of the Schudel plaintiffs. Dr. Lantsberger described

symptoms and offered specific testimony regarding causation

under two theories: a specific condition causation theory; and

a “whole person aggravation” theory. The defendants filed a

motion to exclude Dr. Lantsberger’s causation testimony prior

to trial and a motion to strike the testimony during trial. The

district court did not rule on these motions. _

After the jury returned verdicts in favor of plaintiffs and

defendants moved for JNOV, the court held that Dr.

Lantsberger’s causation testimony based on the “whole body

aggravation” theory had been admitted erroneously. The

court then considered the sufficiency of the remaining

evidence to support the jury verdicts and granted the motion

for JNOV. The court denied defendants’ alternative request

for a new trial.

[4] Four circuits have held that, when deciding a motion

for JNOV, a trial court may not ignore evidence erroneously

admitted at trial, reasoning that excluding evidence after the

verdict is unfair to a party who may have relied on the

12 Carlson and the Froese plaintiffs argue this court has jurisdiction

to review a conditional grant of a new trial under Fed. R. Civ. P.

50(c). See Air-Sea Forwarders, Inc. v. Air Asia Co., 880 F.2d 176,

190 n.15 (9" Cir. 1989) (stating that appellate courts may review

conditional new trial orders because the plain language of Rule

50(c)(1) expressly permits this review). The district court ordered a

new trial under Rule 50(b), not Rule 50(c)(1). The order was not

conditioned on reversal of the order granting JNOV. Rule 50(b)

does not provide for review of non-conditional new trial orders.

A-15

determination that the evidence was admissible.!3 “If

evidence is ruled inadmissible during the course of the trial,

the plaintiff has the opportunity to introduce new evidence.

However, when that evidence is ruled inadmissible in the

context of deciding a motion for JNOV, the plaintiff, having

relied on the evidence already introduced, is unable to remedy

the situation.” Jackson v. Pleasant Grove Health Care Crtr.,

980 F.2d 692, 696 (11™ Cir. 1993).

[5] We recently indicated we would abide by the same

rule. See Central Office Tel., Inc. v. American Tel. & Tel.

Co., 108 F.2d 981, 993 (9™ Cir. 1997). We now hold that

when ruling on a Rule 50(b) motion, a district court should

not exclude evidence erroneously admitted at trial. The

record should be taken as it existed when the trial closed.

This rule promotes certainty: litigants need not supplement

conditionally admitted evidence, perhaps unnecessarily; and

district courts need not speculate as to what other evidence

might have been offered if the evidence had been excluded at

trial. The rule promotes fairness: punishing a litigant for the

court’s erroneous admission of evidence is unfair; and the

remedy of a new trial is available to put both sides on an equal

footing. Jackson, 980 F.2d at 696 n.4.

[6] The district court properly concluded that Dr.

Lantsberger’s testimony based on the “whole person

aggravation” theory of causation did not meet the standard of

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579

13 See Jackson v. Pleasant Grove Health Care Ctr., 980 F.2d 692,

695-96 (11 Cir. 1993); Douglas v. Eaton Corp., 956 F.2d 1339,

1343-44 (6" Cir. 1992); Sumitomo Bank v. Product Promotions,

Inc., 717 F.2d 215, 218 (5™ Cir. 1983); Midcontinent Broadcasting

Co. v. North Cent. Airlines, Inc., 471 F.2d 357, 358-59 (8™ Cir.

1973). The Third Circuit has held that such exclusion is proper as

long as other evidence relating to the same issue was not barred

during trial as cumulative, reasoning that the moving party has a

competing interest in litigating a case only once and expressing

doubt that litigants would hold back significant evidence at trial.

Lightning Lube, Inc., v. Witco Corp., 4 F.3d 1153, 1199-1200 (3d

Cir. 1993).

A-16

(1993) (Daubert I), (outlined in Part IV of this opinion), and

should have been excluded. Once the jury rendered its verdict

based on the improperly admitted evidence, however, the

district court erred in excising that evidence when ruling on

the motion for JNOV. Considering all the evidence admitted

at trial, including Dr. Lantsberger’s “whole person

aggravation” theory testimony, we conclude there was

sufficient evidence to support the jury verdicts in favor of the

Schudel plaintiffs.

[7] Nonetheless, these verdicts may not stand. The

district court erred in denying defendants’ motion for new

trial. A new trial should be granted when the erroneous

admission of evidence affected the substantial right of the

parties. Fed. R. Civ. P. 61. Dr. Lantsberger’s testimony was

the only evidence of causation; its erroneous admission was

undoubtedly prejudicial.

IV. The Defendants’ Appeal

Defendants argue the neurological symptom causation

testimony of Dr. William Morton, Dr. Daniel Goldstein, and

Dr. Lantsberger underlying the jury verdict for Deborah

Williams was not admissible under Federal rule of Evidence

702.14

[8] The Supreme Court held in Daubert J, 509 U.S. at

590-91, that Rule 702 requires the trial judge to determine

that proposed scientific expert testimony will be both reliable

and relevant. See also Daubert v. Merrell Dow Pharm., 43

F.3d 1311, 1313 (9" Cir. 1995) (Daubert IT).

[9] Scientific knowledge is reliable if it is “ground[ed] in

the methods and procedures of science” and “connotes more

than subjective belief or unsupported speculation.” Daubert J,

509 U.S. at 590. In determining reliability, “[t]he focus . . .

14 Defendants also argue the trial court should have held a pretrial

hearing on the admissibility of the testimony of Williams’ experts.

Because we conclude the expert testimony should have been

excluded, we do not decide whether a pretrial hearing should have

been held.

A-17

must be solely on principles and methodology, not on the

conclusions that they generate.” Jd. at 595.

[10] Evidence of scientific knowledge is relevant if the

“reasoning or methodology properly can be applied to the

facts in issue.” Jd. at 593; see also Daubert II, 43 F.3d at

1315 (evidence of scientific knowledge must “logically

advance[ ] a material aspect of the proposing party’s case”).

A court’s determination of relevance must consider the

applicable substantive standard. See id. at 1320. Under

Washington tort law, a plaintiff must show that the “the act

complained of ‘probably’ or ‘more likely than not’ caused the

subsequent disability.” O'Donoghue v. Riggs, 440 P.2d 823,

830 (Wash. 1968). This is virtually the same as the standard

under California tort law applied in Daubert II. See 43 F.3d

at 1320. Under this standard, we held in Daubert II that

expert testimony offered to prove causation did not satisfy the

relevance requirement because the evidence suggested only

that use of the drug at issue “could possibly have caused

plaintiffs’ injuries,” rather than “more likely than not” caused

the injuries, i.e., that use of the drug more than doubled the

likelihood the injuries would occur. 43 F.3d at 1320-22.

[11] The district court approved reliance by Williams’

experts on interview data collected by Diane Nebel. Nebel

contacted many of the workers at the Kaiser facility after one

of the project supervisors fell ill with Legionnaire’s disease.

Nebel found no evidence of Legionnaire’s outbreak, but did

discover that some of the workers, including the plaintiffs,

suffered from various medical symptoms. The data collected

in Nebel’s Legionnaire’s disease investigation provided the

basis for much of the scientific testimony presented by

Williams’ experts at trial.

[12] The district court acted within its discretion in

approving the use of this data by Williams’ expert witnesses.

Dr. Goldstein and Dr. Lantsberger both testified the data was

of the type toxicologists consider reliable and regularly rely

upon. See Fed. R. Evid. 703.

A-18

Dr. Morton testified that plaintiff Williams suffered from

solvent induced toxic encephalopathy which “more probably

than not” was caused by exposure to Perc and TCA. Dr.

Morton’s testimony met Daubert’'s relevance requirement.

However, it did not meet Daubert's requirement of reliability.

[13] Dr. Morton's conclusions were based on

extrapolation from studies that: (1) involved organic solvents

other than TCA or Perc; and (2) examined long-term

exposure at relatively low chemical concentrations or

short-term exposure at very high concentrations, rather than

the short-term, moderate-level exposure sustained by

Williams. Dr. Morton did not establish it was scientifically

acceptable to draw general conclusions about the

and Perc from studies of other

small differences in

[14] As to differences in |

exposure, the district court erroneously reasoned that because

there was evidence that acute exposure to TCA and Perc can

cause toxic encephalopathy, whether Williams’ exposure was

sufficient to cause her symptoms was a question for the jury.

Williams’ exposure was neither long enough nor intense

enough to fall within the ranges described in the studies Dr.

Morton relied upon. Extrapolation was necessary to make the

studies relevant, and there was no showing that the necessary

extrapolation was scientifically acceptable. 5

Dr. Goldstein’s testimony suffered from similar

deficiencies. Dr. Goldstein conceded that only five organic

solvents, none of which were involved in this case, had been

proven to be neurotoxic. He also testified that it would be

improper to infer conclusions as to the toxicity of TCA and

Perc based on the toxicity of other solvents, and that repeated

exposure to nonpersistent toxins such as organic solvents over

admissibility of Dr. Morton’s

defendants’ contention that his

testimony based on

A-19

a long period must be documented to establish a causal

relationship.

[15] Dr. Goldstein acknowledged that the biochemical

mechanism of neurotoxicity from TCA and Perc has not been

demonstrated. Only two studies cited by Dr. Goldstein

involved TCA and Perc, and neither met Daubert standards.

The Altman study found no relationship between exposure to

Perc and the toxic encephalopathy or loss of consciousness

alleged by the plaintiffs. The Kalifant study involved

long-term (7-15 years), repetitive exposures to TCA at high

levels.

[16] Dr. Lantsberger’s testimony failed to meet

Daubert’s relevance requirement. She testified it was only a

“possibility,” not a “probability,” that Williams suffered

organic brain damage from exposure to solvents at the facility.

Dr. Lantsberger admitted she could not testify to a specific

cause and effect relationship between Williams’ exposure and

health problems. She relied instead on a “whole person

aggravation” theory without establishing that the theory had a

scientific basis. a

[17] Dr. Lantsberger’s testimony regarding the hazards

of TCA and Perc was inadmissible under Daubert. Dr.

Lantsberger, like Dr. Goldstein, relied on the Altman and

Kalifant articles to reach her neurotoxicity conclusions, and

like Dr. Goldstein, admitted that medical science has not

determined the effects of short-term exposure to the solvents

involved.

[18] Plaintiff Williams points to other expert witnesses

whose testimony was not challenged by defendants. Only one

of these experts provided causation testimony, and his

testimony related only to Williams’ respiratory injury.

[19] Considering all the evidence admitted at trial,

including the erroneously admitted evidence, we hold the

district court properly denied defendants’ motion for JNOV

with respect to Williams. Admission of the challenged expert

testimony was prejudicial, however, because it was the sole

causation evidence with respect to Williams’ neurological

A-20

symptoms. Accordingly, we vacate the judgment entered on

the jury verdict, reverse the district court’s denial of

defendants’ motion for a new trial, and remand.

CONCLUSION

We lack jurisdiction to review the district court’s grant of

JNOV and new trial as to plaintiffs Merlin Carlson, Kathrene

Froese, John Hopkins, and Ruth Hopkins, and DISMISS their

appeals.

We REVERSE the grant of JNOV and the denial of the

motions for new trial as to the plaintiffs David Schudel, Tim

Schudel, Sandra Schudel, Daniel Glass, and Craig Thompson,

and REMAND.

We find plaintiff Deborah Williams’ neurological expert

testimony on causation inadmissible, VACATE the judgment

entered on the jury verdict in her favor, REVERSE the denial

of the motion for new trial, and REMAND.

DISMISSED in part, and VACATED, REVERSED, and

REMANDED in part. No costs allowed.

A-21

FILED IN THE U.S. DISTRICT COURT EASTERN

DISTRICT OF WASHINGTON NOVEMBER 25 1994

JAMES R. LARSEN, CLERK DEPUTY

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

DAVID SCHUDEL, et al, NO. CS-92-081-FVS

Plaintiffs,

VS. ORDER RE POST-

TRIAL MOTIONS

GENERAL ELECTRIC

COMPANY and

KAISER ALUMINUM AND

CHEMICAL CORPORATION,

Defendants.

BEFORE THE COURT are certain post-trial motions.

They were decided without oral argument on November 22,

1994. See Local Rule (“LR”) 7(h)(3).

I. PLAINTIFFS’ MOTION TO STRIKE

A. Background

Judgment was entered on July 13, 1994. On July 27,

1994, the defendants filed motions for both judgments as a

matter of law and a new trial. Fed.R.Civ.P. 50(b);

Fed.R.Civ.P. 59. That same day, copies of the motions were

mailed to opposing counsel via Federal Express.

The plaintiffs now move the Court to strike the

defendants’ Rule 50(b) and Rule 59 motions. They argue that

the motions were not served in a timely manner.

B. Ruling

Motions for judgment as a matter of law and for a new

trial must be filed and served within ten days of the date

judgment is entered. Fed.R.Civ.P. 50(b); Fed.R.Civ.P. 59(b).

In calculating the ten-day deadline, neither intermediate

weekends nor legal holidays are counted. Fed.R.Civ.P. 6(b).

Thus, the defendants had until the twenty-seventh of July to

file and serve their Rule 50(b) and Rule 59 motions.

It is undisputed that the defendants mailed copies of their

motions to all opposing parties by Federal Express on July 27,

A-22

1994. Since “[s]ervice by mail is complete upon mailing,”

Fed.R.Civ.P. 5(b), the defendants’ motions would appear to

have been both filed and served prior to the deadline.

The plaintiffs disagree. They contend that sending

documents by Federal Express does not constitute “mailing”

within the meaning of Rule 5(b).

Notwithstanding the plaintiffs’ disagreement, they have

failed to cite a single decision adopting their interpretation of

Rule 5(b). They are forced to rely upon Transco Leasing

Corp. v. United States, 992 F.2d 552, 554 n.2 (5" Cir. 1993),

a case in which the Fifth Circuit cautioned, in dicta, “that

service by Federal Express may not be service by mail.” 16

The defendants, by contrast, have cited two district

courts decisions that considered — and rejected — the plaintiffs’

position. Both held that Rule 5(b) does not require mailing

through the United States Postal Service. United States v.

Certain Real Property & Premises Known As 63-29 Trimble

Rd., 812 F.Supp. 332, 334 (E.D.NY. 1992); Edmond v.

United States Postal Serv., 727 F.Supp. 7, 11 (D.D.C. 1989),

rev'd on other grounds, 949 F.2d 415 (1991).

Here, it was reasonable for the defendants to believe that

the method of service they utilized would be more prompt

than ordinary first class mail, and every bit as reliable. Given

the plaintiffs’ failure to cite authority supporting their

interpretation of Rule 5(b), and the fact that two district

courts have specifically rejected their position, the plaintiffs’

motion to strike will be denied.

If.. DEFENDANTS’ MOTION FOR JUDGMENT

AS A MATTER OF LAW.

The defendants offer six reasons why the Court should

grant judgment as a matter of law. Fed.R.Civ.P. 50(b). They

are as follows: (1) the plaintiffs’ experts based their opinions

upon unreliable data; (2) certain experts were not qualified,

and their opinions do not constitute “scientific knowledge”

‘Professors Wright and Miller mention Transco, but do not analyze

the issue. 4A C. Wright, A. Miller, Federal Practice and Procedure,

§ 1148 (2d ed. Supp. 1994).

A-23

within the meaning of Rule 702; (3) even if the disputed

opinions are admissible, they fail to establish causation, (4)

under Washington law, many of Dr. Lantsberger’s opinions

regarding causation are legally insufficient, (5) the plaintiffs

were loaned servants; and (6) Kaiser owed no duty of care to

the plaintiffs.

A. Reliability/Loaned Servant/Duty

Not all of the defendants’ arguments require in-depth

analysis. The first, fifth, and sixth may be disposed of rather

quickly.

1. Reliability of Data

The Court refused to admit the “Nebel” exhibits

because they were hearsay, and the plaintiffs had not

demonstrated the applicability of an exception to the hearsay

rule. Moreover, even if an exception had applied, the exhibits

were cumulative. (Tr. at 5790-91).

Later, the defendants attempted to impeach Craig

Thompson with statements he made to Ms. Nebel. See

Fed.R.Evid. 801 (d) (2) (A) (admission by party-opponent).

The plaintiffs objected. (Tr. at 5970.) In sustaining the

objection, the Court said, in part, “They [the Nebel exhibits]

were not admitted because of concerns about reliability."”

(Tr. at 5984.)

The defendants have interpreted the court’s statement as

a finding that the Nebel exhibits were unreliable. When both

sections of the transcript are read in context, it is evident that

no such finding was intended.

2. Loaned Servant

The jury was instructed properly on the question of

“loaned servant.” Since there is substantial evidence to

support the jury’s determination that the plaintiffs were not

loaned servants, there is no basis for granting the defendants

judgment on this issue.

3. Duty of Care

With Respect to the question of “duty,” the defendants

have cited no new authority. The Court is satisfied that a duty

existed.

A-24

B. Admissibility of Certain Expert Opinions

The second argument focuses on the admissibility of

opinions given by Drs. Lantsberger, Goldstein, and Morton.

The defendants submit that these three witnesses were not

qualified to render opinions regarding toxic encephalopathy,

and that their theories of organic brain damage are not

supported by the scientific literature.

Both prongs of the second argument were raised prior to

(and during) trial. After reviewing the materials presented by

the parties, the Court ruled against the defendants on both

issues.

Since then, the Ninth Circuit has decided two civil cases,

the outcome in each hinging on the admissibility of expert

testimony. Both opinions discuss the requirements of Rule

702 in light of Daubert v. Merrel Dow Pharmaceuticals, Inc..,

US. _, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Both agree that expert testimony may not be admitted unless

the trial judge first determines that the expert’s conclusions

are based upon scientific knowledge. Hopkins v. Dow

Corning Corp., 33 F.3d 1116, 1124 (9" Cir. 1994); Claar v.

Burlington Northern R. Co., 29 F.3d 499, 502 (9" Cir. 1994).

Although Hopkins and Claar are clearly relevant here,

neither dictates a result different than that previously reached

by the Court. As a result, the Court declines to disturb its

prior rulings regarding toxic encephalopathy.

C. Sufficiency of Certain Expert Opinions

(Background)

The third and fourth arguments challenge the sufficiency

of certain expert opinions - primarily those of Dr.

Lantsberger. Because this part of the defendants’ Rule 50(b)

motion attacks sufficiency, it is necessary to describe the

disputed opinions in some detail.

6. Merlin Carison

Two experts analyzed the symptoms that Merlin Carlson

reported. One was Dr. Daniel Goldstein. Although the

defendants challenge the admissibility of his testimony on a

A-25

number of other grounds, they concede that he testified — on a

more probable than not basis — that Mr. Carlson sustained

brain damage due to solvent exposure. (Defendants’

Memorandum in Support of Renewed Motion at 82.)

The other expert who analyzed Mr. Carlson’s symptoms

was Dr. Lantsberger. Not only did she testify about

respiratory problems (Tr. at 1922-23, 1925-26), but she also

testified about fatigue, headaches, “overall body pain,” and

“whole person” aggravation. (Tr. at 1926, 3143.)

(a) Direct examination of Dr. Lantsberger

On direct, Dr. Lantsberger was asked whether she had an

opinion regarding the cause of Mr. Carlson’s “problems with

breathing.” (Tr. at 1925.) She said that she had reached the

“same conclusion” with respect to his “breathing problems”

that she had reached with respect to his “brain injuries,”

namely, “[t]hat he has a similar pattern as the other

coworkers, and that the overall epidemilogical data leads me

to believe that his exposure in the work site is the joining

factor of all of the physical problems.” (Tr. at 1926.)

Next, Dr. Lantsberger was asked whether there was a

relationship between Carlson’s complaints of “fatigue,

headache, [and] overall body pain” and “exposure to

chemicals in 1988.” Id. She replied, in part, “The other

coworkers complaining of the same, similar respiratory,

cognitive, joing and body aches, leads me to assume based on

epidemiological look at the exposure, the symptoms beginning

about he same time frame and continuing subsequently leads

me to believe that they are associated with the exposure.”

(Tr. at 1926-27.)

(b) Cross-examination of Dr. Lantsberger

Dr. Lantsberger acknowledged that it was during August,

1991, that she last made a note regarding Carlson’s complaint

if of breathing problems. (Tr. at 2935.) She further

acknowledge that Carlson does not have Reactive Airways

Dysfunction Syndrome, (Tr. at 2935), and that she has never

diagnosed asthma. Id.

With respect to “bone pain and joint aches,” she said, “I

A-26

don’t know what caused these guys to have the aches and

pains, but I do now that a significant number of the workers

did have them.” (Tr. at 2936.)

Dr. Lantsberger denied that it made sense to look at

Merlin Carlson in terms of “isolated incidences [sic].” (Tr. at

3142-43.) Over objection, she testified, “In terms of his entire

exposure, his preexisting as, as a consequence of his

exposure, I think that his preexisting problems were

aggravated by his exposure at Kaiser on a more probable that

not basis.” (Tr. at 3143.)

D. Sufficiency of Certain Expert Opinions (Analysis)

A motion for judgment as a matter of law may be granted

when “a party has been fully heard with respect to an issue

and there is no /egally sufficient evidentiary basis for a

reasonable jury to have found for that party with respect to

that issue... .” Fed.R.Civ.P. 50(a)(1). See Montiel v. City

of Los Angeles, 2 F.3d 335, 342 (9" Cir.1993). The moving

party must demonstrate that insofar as the verdict is

concerned, the evidence permits but one reasonable

conclusion. Conner _v. Sakai, 15 F.3d 1463, 1467 (9

Cir. 1993).

6. Merlin Carison

Mr. Carlson’s principal claim was for toxic

encephalopathy. He did not stop there, however. Dr.

Lantsberger reported breathing problems, fatigue, headaches,

and “overall body pain.”

With respect to respiratory complaints, Dr. Lantsberger

was forced to concede that Mr. Carlson does not have

Reactive Airways Dysfunction Syndrome or industrially

induced asthma. Similarly, with respect to “bone pain and

joint aches,” she could only say, “I don’t know what caused

these guys to have the aches and pains, but I do know that a

significant number of the workers did have them.” Given the

record, a reasonable jury could not have found for Mr.

A-27

Carlson on his non-neurological claims.

E. Sufficiency of Certain Expert Opinions

(Conclusion)

In view of the foregoing, the defendants are entitled to

judgment as a matter of law on a number of claims. They

include the following: all claims asserted by Dan Glass, David

Schduel, Craig Thompson and Tim Schudel; all non-

respiratory claims asserted by Kathrene Froese; all non-

neurological claims asserted by Merlin Carlson; and all non-

respiratory claims asserted by the Hopkins.

Although several claims must be dismissed, several

remain. The next question is whether a new trial is necessary.

Approximately six weeks prior to trial, the Court asked

the plaintiffs to list their claims against the defendants. (Order

Re Daubert Procedure (Ct. Rec. 326) at 7.) The plaintiffs

declined to do so. (Plaintiffs’ Lists of Claims (Ct. Rec. 334).)

Instead, they presented the jury with a long list of symptoms,

only some of which could be connected to the plaintiffs’ work

at Kaiser on a more probable than not basis. Furthermore,

when it came time to instruct the jury, the plaintiffs reyected a

suggestion that the jurors be asked to decide specific claims.

The plaintiffs’ choice of tactics has placed the Court in an

awkward position. Because the jurors were not asked to

return verdicts with respect to each plaintiffs individual

claims, it is now impossible to separate the wheat from the

chaff. Thus, the Court is forced to conclude that the verdicts

in favor of Kathrene Froese, Merlin Carlson, Ruth Hopkins

and John Hopkins are too tainted to stand. For that reason,

the plaintiffs’ remaining claims must be re-tried.

I. DEFENDANTS’ MOTION FOR NEW TRIAL

The defendants give twelve reasons why the Court should

order a new trial. Fed.R.Civ.P. 59. They include the

following: First, by urging the jury to “send a message” to the

defendants, the plaintiffs injected irrelevant, arbitrary, and

punitive considerations into the jury’s deliberations. Second,

the Court failed to instruct the jury on Washington’s medical

A-28

causation standard. Third, the Court’s instructions with

respect to state and federal safety regulations were in error.

Fourth, the Court failed to instruct the jury on the limited

duties of the employer of an independent contractor. Fifth,

the plaintiffs violated a pretrial order by introducing evidence

regarding Daniel Skeman. Sixth, the Court applied Bryan v.

John Bean, 566 F.2d 541 (5™ Cir.1978), in an improper

manner. Seventh, the defendants should have been allowed to

cross-examine the plaintiffs regarding inconsistent statements

made to Diane Nebel. Eight, the plaintiffs should not have

been allowed to offer evidence regarding symptoms

experienced by non-plaintiff workers. Ninth, the plaintiffs

were permitted to suggest that a defense expert had no basis

for opining that Mrs. Hopkins’s depression had a cause other

than that suggested by her experts. Tenth, the jury’s verdict

was against the weight of the evidence. Eleventh, the

damages awarded were excessive both as a matter of fact and

a matter of law. Twelfth, the defendants’ right to cross-

examination was violated.

Given the Court’s various rulings with respect to the

defendants’ motion for judgment as a matter of law, the

defendants’ alternative request for a new trial is moot with

respect to all but Deborah Williams. Insofar as she is

concerned, the defendants’ motion is denied.

V. MOTION TO AMEND VERDICT

Kaiser Aluminum and Chemical Corporation is one legal

entity; Kaiser Aluminum Corporation is another. Since at

least October, 1991, it is Kaiser Aluminum and Chemical

Corporation which has been one of the two named defendants

in this action. |

The jury returned its verdict on July 13, 1994. Judgment

was entered that same day. The judgment refers to Kaiser

Aluminum Corporation, not Kaiser Aluminum and Chemical

Corporation.

Defendant Kaiser Aluminum and Chemical Corporation

now moves the Court, pursuant to Rule 60, to amend the

A-29

judgment to reflect its true name. The plaintiffs do not object.

Kaiser aluminum and Chemical Corporation is correct.

The wrong corporate entity was listed in the judgment. As a

result, its motion will be granted and the judgment modified

accordingly.

VIL MOTION TO STAY EXECUTION OF

JUDGMENT

The defendants move the Court to stay any

proceedings to enforcement the judgment pending resolution

of their post-trial motions. Fed.R.Civ.P. 62(b). With entry of

this order, the defendants’ request becomes moot. It will

therefore be denied.

IT IS HEREBY ORDERED:

1. The plaintiffs’ motion to strike defense motions as

untimely (Ct. Rec. 536) is denied.

2. The defendants’motion to strike plaintiffs’

memorandum (Ct. Rec. 565) is denied.

3. The plaintiffs’ motion to strike reply (Ct. Rec. 552) is

denied.

4. The defendants’ motion for judgement as a matter of

law (Ct. Rec. 488) is denied in part and granted in part. The

judgments entered herein are re-opened and modified as

follows: ;

(a) The defendants are granted judgment as a matter

of law on all claims asserted by Dan Glass, David Schudel,

Craig Thompson and Tim Schudel. Those claims are

dismissed with prejudice.

(b) The defendants are granted judgment as a matter

of law on all non-respiratory claims asserted by Kathrene

Froese. Those claims are dismissed with prejudice.

of law on all non-neurological claims asserted by Merlin

Carlson. Those claims are dismissed with prejudice.

(d) The defendants are granted judgment as a matter

of law on all non-respiratory claims asserted by Ruth Hopkins

and John Hopkins. Those claims are dismissed with

prejudice.

5. The defendants are granted a new trial on all remaining

claims.

6. The defendants’ motion for new trial or alternative

relief (Ct. Rec. 486) is denied.

7. The plaintiffs’ timely request for attorneys’ fees and

costs shall have the same effect under Fed.R.App.P. 4(a)(4) as

a Rule 59 motion, and the period for filing a notice of appeal

shall be extended accordingly.

8. The plaintiffs’ request for attorneys’ fees and costs is

denied in part and granted in part. Ms. Deborah Williams is

directed to submit a revised cost bill.

9. Defendant Kaiser Aluminum and Chemical

Corporation’s motion to amend or correct judgments (Ct.

Rec. 513) is granted. The judgments entered herein shall

refer to “Kaiser Aluminum and Chemical Corporation,” not

“Kaiser Aluminum Corporation.”

10. The plaintiffs’ motion for order shortening time (Ct.

Rec. 555) is denied.

11. The plaintiffs’ motions for order setting hearing on

discovery abuses (Ct. Recs. 534 and 563) are denied.

12. The defendants’ motion for stay of proceedings to

enforce judgments (Ct. Rec. 490) is denied.

IT IS SO ORDERED. The Clerk is hereby directed to

file this order, enter judgment accordingly, and furnish copies

to counsel.

DATED this 22 day of November 1994.

/s/

FRED VAN SICKLE

United States District Judge

A-31

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

DAVID SCHUDEL, et’

al., )

Plaintiffs, ) NO. CS-92-0081-AM

vs. )

) ORDER

GENERAL ELECTRIC ) DISMISSING

COMPANY and KAISER ) CERTAIN CLAIMS,

CHEMICAL

CORPORATION, )

Defendants.

A show cause hearing was conducted on March 2, 1999.

Marcia Meade, Esq., appeared on behalf of plaintiff Merlin

Carlson. Craig F. Schauermann, Esq., appeared on behalf of

plaintiffs David Schudel, Tim Schudel, Sandra Schudel,

Daniel Glass, Craig Thompson, Deborah Williams and

Kathrene Froese. Thomas C. Phelan, Esq., appeared on

behalf of plaintiffs John Hopkins and Ruth Hopkins. James B.

King, Esq., and Donald W. Fowler, Esq., appeared on behalf

of defendants General Electric Co. and Kaiser Aluminum and

Chemical Corporation.

I. BACKGROUND

On November 19, 1998, this court entered an order (Ct.

Rec. 750) directing seven of the ten plaintiffs identified above

to show cause why certain of their claims should not be

dismissed with prejudice as a result of the decision of the

Ninth Circuit Court of Appeals in Schudel v. General Elec.

Co., 120 F. 3d. 991 (9 Cir. 1997). 1

The background of this case is set forth in the Ninth

Circuit’s decision. Nine of the ten plaintiffs were employees

of General Electric Co. which contracted to clean up

\7 The circuit’s mandate issued in December 1997. (Ct. Rec. 724

and 725). Subsequently, a petition for writ of certiorari was denied

by the U.S. Supreme Court, 118 S.Ct. 1560 (1998).

A-32

polychlorinated biphenyls (PCBs) at Kaiser Aluminum and

Chemical Company!8. Plaintiffs allege they developed

various neurological and respiratory problems from exposure

to two cleaning solvents, trichloroethane (TCA) and

perchloroethylene (Perc).!9 After an approximately 60 day

trial spanning from April 14, 1994 to July 13, 1994, a jury

returned a verdict for the plaintiffs. Schudel, 120 F. 3™ at

993.

The defendants moved for JNOV (judgment

notwithstanding verdict) or new trial. The Honorable Fred

Van Sickle affirmed the verdict in favor of plaintiff Deborah

Guaragna-Williams (hereinafter “Williams”).29 Judge Van

Sickle granted JNOV with respect to the respiratory injury

component of the claim by plaintiff Merlin Carlson. He also

granted JNOV with respect to the neurological injury

component of the claims by plaintiffs Kathrene Froese (aka

Kathrene Howell), John Hopkins and Ruth Hopkins

(collectively known as the Froese plaintiffs”). Judge Van

Sickle ordered a new trial with regard to the injury

components of the claims of Carlson and the Froese plaintiffs

on which JNOV was not granted. He ordered a new trial for

Carlson on the neurological injury component of his claim.

For the Froese plaintiffs, a new trial was ordered on the

respiratory injury component of their claims. Lastly, Judge

Van Sickle granted JNOV on the claims asserted by the

remaining plaintiffs: David Schudel, Tim Schudel, Sandra

Schudel, Daniel Glass and Craig Thompson (collectively

known as the “Schudel plaintiffs). Id. Both plaintiffs and

defendants appealed Judge Van Sickle’s November 5, 1994

“Order Re Post-Trial Motions” pursuant to his Fed. R. Civ. P.

18 Sandra Schudel was not an employee. She is the wife of Tim

Schudel and claims loss of consortium.

19 The asserted injuries in this case are divided into two different

groups: 1) neurological injuries including headaches and rashes; and

2) respiratory injuries including fatigue and overall body pain. 120

F.3™ at 993, n. 2 and 3.

20 She now goes by the married name of “Deborah Hayes.”

54 (b) certification.

The Ninth Circuit ruled it did not have jurisdiction to

consider the appeals from Judge Van Sickle’s order granting

JNOV and new trial with regard to the claims of Carlson and

the Froese plaintiffs. The circuit noted it had jurisdiction to

review final judgments on entire claims and that an order

adjudicating only one issue that is not determinative of an

entire claim is not appealable even if the district court certifies

the order under Fed. R. Civ. P. 54 (b). Id at 994-5. The

circuit found Carlson and Froese alleged a single claim of

negligence, not separate claims for neurological injury and

respiratory injury. Therefore, the circuit did not have

jurisdiction to review the JNOV granted solely on the

respiratory injury component of Carlson’s negligence claim,

nor the JNOV granted solely on the neurological injury

component of Froese’s negligence claim. Likewise, the circuit

found John and Ruth Hopkins alleged claims for negligence

and loss of consortium, not separate claims for neurological

and respiratory injury as to each claim. Therefore, the circuit

did not have jurisdiction to review the JNOV granted solely

on the neurological injury component of the Hopkins’

negligence and loss of consortium claims.

Consequently, Judge Van Sickle’s “Order Re Post-Trial

Motions” remains in effect to the extent it is necessary to

proceed with a new trial on the respiratory injury component

of the claims of Kathrene Froese, John Hopkins and Ruth

Hopkins.2! Although Judge Van Sickle’s order anticipated a

new trial on the neurological injury component of Carlson’s

claim, the Ninth circuit’s finding that certain neurological

causation evidence presented at trial is scientifically unreliable

raises a question whether any scientifically reliable evidence

remains to support the neurological injury component of

21 At the appropriate time, the Froese plaintiffs may proceed with

an appeal of the JNOV which was granted on the neurological

injury component of their claims. At this time, the court is not

obliged to afford them a new trial on that component of their claims.

Carlson’s claim.22

In considering defendants’ motion for JNOV, Judge Van

Sickle “exercised” the “whole person aggravation theory” of

causation testified to at trial by Paula Lantsberger. Judge Van

Sickle found this ey was not scientifically reliable under

the Daubert standard.23 and therefore, that Dr. Lantsberger’s

testimony regarding this theory has been admitted

erroneously. In addition to the “whole person aggravation

theory,” Dr. Lantsberger offered causation testimony under a

separate theory known as the “specific condition causation

theory.” Dr. Lantsberger was the only witness on causation

on behalf of the Schudel plaintiffs. Judge Van Sickle

considered the sufficiency of the remaining causation evidence

(excluding the “whole person aggravation” testimony) and

granted the motion for JNOV on all of the claims asserted by

the Schudel plaintiffs. The Ninth Circuit found this to be

error and held that when ruling on a JNOC motion, a district

court should not exclude evidence erroneously admitted at

trial. Schudel, 120 F. 3d at 995.

Considering all of the evidence admitted at trial, including

Dr. Lantsberger’s “whole person aggravation” theory, the

circuit concluded there was sufficient evidence to render a

verdict in favor of the Schudel plaintiffs. However, the circuit

also held those verdicts could not stand, agreeing with Judge

Van Sickle that Dr. Lantsberger’s testimony based on the

“whole person aggravation” theory of causation did not meet

the Daubert standard. Therefore, the circuit held Judge Van

Sickle should have granted defendants’ motion for a new trial

on the claims of the Schudel plaintiffs. Id at 996.

Finally, the Ninth Circuit held that the neurological

symptom causation testimony of Dr. William Morton, Dr.

Daniel Goldstein, and Dr. Lantsberger, underlying the jury

22 JNOV was granted on the respiratory injury component of

Carison’s claim and hence, this court is not obligated, at this time,

to provide him a new trial on that component of his claim.

23 Dauber Merrell Dow Pharmaceuticals, In 509 U.S. 579,

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verdict for plaintiff Deborah Williams, was not admissible

under the Daubert standard. Considering all the evidence

admitted at trial, including the erroneously admitted evidence,

the circuit held that Judge Van Sickle properly denied

defendants’ motion for JNOV as to Williams. However,

admission of the challenged expert testimony was prejudicial

because it was the sole causation evidence with regard to

Williams’ neurological symptoms. Id. at 996-7.

Based on the circuit’s opinion, this court’s November 19,

1998 order (Ct. Rec. 750) specifically directed plaintiffs to

show cause as follows:

1) Plaintiff Williams was required to show what then

available and admissible causation evidence she would have

presented at trial to withstand a directed verdict on the

neurological injury component of her claim, if the neurological

injury causation evidence found legally insufficient by the

circuit had been excluded from said trial. In other words,

Williams is obliged to show cause why the neurological injury

component of her negligence claim should not be dismissed

with prejudice.

2) Plaintiff Carlson was required to show that causation

evidence he presented, or could have presented, during trial is

materially different from the neurological injury causation

evidence found insufficient as a matter of law by the circuit.

In other words, Carlson is obligated to show why the

neurological injury component of his negligence claim should

not be dismissed with prejudice if it is based on the same

evidence found insufficient as a matter of law by the circuit.

3) The Schudel plaintiffs were required to show that if

the causation testimony of Dr. Lantsberger regarding the

“whole person aggravation” theory had been excluded prior

to trial, they would have presented then available and

admissible evidence sufficient to withstand a directed verdict

on their claims (both the neurological and respiratory

components thereof). In other words, the Schudel plaintiffs

are obligated to show why their claims should not be

dismissed with prejudice in their entirety.

II Discussion

In response to the court’s show cause order, plaintiffs

submitted affidavits and declarations from certain of their

experts who testified at the trial: Dr. William Morton, Dr.

Paula Lantsberger, and Dr. Daniel Goldstein. They also

submitted declarations from two new experts who did not

testify at the trial: Dr. Kaye Kilburn and Dr. Geoffre A.

Kelafant.

Plaintiffs do not dispute that this court is obligated to

follow the mandate of the Ninth Circuit and may not

reconsider or reverse the circuit’s opinion. The most

compelling of the law of the case rules is the “mandate” rule.

Casey V. Planned Parenthood, 14, F. 3d 848, 856 (3rd Cir.

1994). The obligation of every court to honor the rulings of a

court that stands higher in a hierarchical judicial structure is

“fundamental.” Charles A. Wright, et al., 18 Federal Practice

and Procedure, § 4478 at p. 788 (1981). An inferior court

has no power or authority to deviate from the mandate issued

by an appellant court. Briggs v. Pennsylvania R. Co., 334

U.S. 304, 306 (1948). The inferior court is bound by the

higher court’s decree as the law of the case and must execute

it according to the mandate. The inferior court may not vary

the decree, “nor examine it for any purpose other than

execution; nor give any other or further relief, nor review it

upon any matter decided on appeal, for error apparent, nor

intermeddle with it, further than to settle so much as has been

remanded.” Sibbald v. United States, 37 U.S. (12 Pet.) 488, 9

L.Ed. 1167 (1838). The mandate rule requires a district court

to follow an appellate court’s resolution of an issue of law in

all subsequent proceedings in the-same case. It applies to the

appellate court’s explicit decisions, as well as those issues

decided by necessary implication. United States v. Cote, 51 -

F. 3d 178, 181 (9th Cir. 1995). 18 Federal Practice and

Procedure, §4478 at p. 793.

Plaintiffs assert the circuit’s opinion provided their

experts with an opportunity to “fill gaps” in the scientific

evidence identified by the circuit. According to plaintiffs, this

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is apparent from the fact the circuit did not dismiss any of the

plaintiffs’ claims. Plaintiff contend the affidavits and

declarations of their experts sow they are prepared to “fill the

gaps” identified by the circuit.

Affidavit of Dr. William Morton

At trial, Dr Morton testified that plaintiff Williams

suffered from solvent induced toxic encephalopathy which

“more probably than not” was caused b exposure to Perc and

TCA. The Ninth Circuit found Dr. Morton’s testimony did

not meet Daubert’s reliability requirement.24 Schudel, 120 F.

3d at 996-97. According to the circuit:

Dr. Morton’s conclusions were based on an extrapolation

from studies that: (1) involved organic solvents other than

TCA or Perc; and (2) examined long-term exposure at

relatively low chemical concentrations, rather than the sort-

term, moderate level exposure sustained by Williams. Dr.

Morton did not establish it was scientifically acceptable to

draw general conclusions about the neurotoxicity of TCA and

Perc from studies of other chemicals; indeed, the testimony

indicated small differences in molecular structure often have

significant consequences.

As to differences in length and intensity of exposure, the

district court erroneously reasoned that because there was

evidence that acute exposure to TCA and Perc can cause

toxic encephalopathy, whether Williams’ exposure was

sufficient to cause her symptoms was a question for the jury.

Williams exposure was neither long enough nor intense

enough to fall within the ranges described in the studies Dr.

Morton relied upon. Extrapolation was necessary to make the

studies relevant, and there was no showing the necessary

extrapolation was scientifically acceptable.

Id. at 997.

Plaintiffs argue the circuit intended on remand to provide

Dr. Morton with an opportunity to make a “showing the

necessary extrapolation was scientifically acceptable.” This

24 Daubert has two requirements: 1) scientific evidence must be

reliable and 2) it must be relevant to the legal inquiry at hand.

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court is not persuaded. It is clear the circuit found the

particular extrapolation testified to by Dr. Morton was not

scientifically reliable. The circuit did not say the extrapolation

could potentially be reliable. The very issue presented on

appeal was the admissibility of Dr. Morton’s neurological

causation testimony under Federal Rules of Evidence 702. Id.

at 996. The circuit ruled it was inadmissible, not that it might

be admissible. This court believes that if the circuit intended

to extend an invitation to plaintiffs’ experts to fill gaps in the

scientific evidence, the circuit would have done so explicitly.

The court is compelled to conclude that Dr. Morton’s

affidavit represents nothing more than an attempt to reargue

the particular extrapolation already declared unreliable by the

circuit. Simply put, Dr. Morton contends the circuit’s

decision is wrong. In paragraph 4 of his affidavit, Dr.

Morton indicates he has reviewed the circuit’s decision and

summarizes what the circuit found scientifically unreliable

about his trial testimony:- 1) not scientifically acceptable to

draw general conclusions about the neurotoxicity of TCA and

PERC from studies of other organic solvents; and 2) failure

to demonstrate extrapolation as a scientifically acceptable

methodology.

In paragraphs 5 through 8, Dr. Morton offers a defense

of the extrapolation method he used which was rejected by

the circuit. According to Dr. Morton:

The extrapolation method that I used, took into account

that we know that: 1) low-dose long-term exposure causes

injuries; and 2) high-dose, very short-term exposures cause

injuries; and, 3) case reports demonstrate that medium-dose,

medium-exposure levels (such as those received by (Williams)

and her fellow workers) cause harm. This information tied

with the physical symptoms, a review of the individual history,

a physical exam and testing, allowed me to reasonably

conclude that these organic solvents were the cause of the

injuries that were clearly found to exist in (Williams). In

addition to the cause reports tat I testified to both in my

prior offer of proof and at the time of trial, I enclose an

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additional case report that is extremely similar to the

outcomes and injuries reported by (Williams) and the other

workers at this site. R Singer, Neurotoxicity Guidebook, 94-

99 (1990).

(Emphasis added).

The Singer text was available to Dr. Morton at the time

of trial and was cited by him as part of his “Offer of Proof’

filed prior to the commencement of trial inl1994. (Ex. 2 to

Affidavit of William Morton at p. 4). As defendants point

out, a case report from Singer was discussed at trial. (Ex. 3

to Affidavit of William Morton at pp. 5373 to 5382).

According to defendants, the “additional case report” referred

to by Dr. Morton in his affidavit (attached as Ex. 5 to the

affidavit), is the same case report from Singer which was

discussed at trial. That appears to be true.

At Trial, Dr. Morton, Dr. Morton acknowledged the case

report from Singer involved an individual, identified with a

fictitious name, who was exposed for six or seven months in a

12 x 24 feet enclosed room. As is apparent from Ex. 5

attached to Dr. Morton’s affidavit, “Mr. Small” is the

fictitious name of an individual who worked as a degreasing

technician from February 1985 through August 1985 (seven

months) and who was exposed to TCA while working in a 12

x 24 feet enclosed room. Consequently, the case report of

“Mr. Small” does not qualify as other evidence, available and

admissible at the time of trial, sufficient to withstand entry of

a directed verdict for defendants.

All of the textual references in Dr. Morton’s affidavit are

dated prior to 1994 and therefore, would have been available

prior to trial for consideration in an scientific analysis. With a

few exceptions, the references contained in the affidavit are

the same as those contained in Dr. Morton’s pre-trial offer of

proof. One of the exceptions is Casarett and Doul,

Toxicology, The Basic Science of Poisons, Fourth Ed.,

1991).25

25 The other exceptions appear to be Occupational Toxicology,

Chapter 11 (NH. Stacey, Ed. 1993), and Gerr and Letz,

Ase

In his affidavit, Dr. Morton cites Casarett and Doul as

support for the proposition that proposition that extrapolation

“is a widely” accepted scientific principle and methodology:”

that a variety of models are used by scientists;” and “(t)he

appropriate method to be used is determined by the facts and

what is known about the chemicals.”

In paragraph 6 of his affidavit, Dr. Morton explains why

he believes the extrapolation he employed on behalf of

plaintiff Williams was proper:

... we had the additional benefit in the extrapolation

that I used at the time of trial, of a great deal of anecdotal

evidence that verified the extrapolation method in the

medium-dose, medium-exposure range. This was not a simple

extrapolation without ancillary information. The ancillary

information tied with the peer review studies assisted us in

verifying the extrapolation results. In this matter, we also had

the benefit of neuropsychological studies that clearly

demonstrated that (Williams) suffered from organic brain

syndrome. This type of syndrome is one which one might

(expect) a person to be suffering from as a result of this type

of exposure. We had Dr. Breysee’s testimony that the

exposure levels were five to ten times the permissible

exposure limits. We knew the approximate amount of time of

exposure that (Williams) as well as the other workers. We

had demonstrable pulmonary effects from the exposure and

we knew that the exposure involved organic solvents that

were used at the work site which were perfectly compatible

with the findings that were made.

(Emphasis added).

As is plainly evident, Dr. Morton merely attempts to

bolster the extrapolation method which he testified to during

the 1994 trial and which on appeal, the Ninth Circuit declared

scientifically unreliable. This conclusion is reinforced by

paragraph 8 of Dr. Morton’s affidavit in which he asserts he

“took” various factors and information into account in

reaching his conclusions and that his extrapolations are

Environmental and Occupational Medicine, Chapter 66 (1992).

A-A1

scientifically acceptable because of “the affinity of all organic

solvents for fatty neural tissue.”

In paragraph 7 of his affidavit, Dr. Morton discusses how

the federal Food and Drug Administration uses extrapolation

as a means of determining whether certain chemicals can be

used by humans. That says nothing about the reliability of the

specific extrapolation for use in prospective policy decision is

quite different from using an extrapolation to help answer the

retrospective inquiry of whether a particular exposure caused

a particular injury on a more probable than not basis. Allen v

Pennsylvania Engineering Corp., 102 F 3d 194, 198 (Sth Cir.

1996).

In paragraph 9 of his affidavit, Dr. Morton acknowledges

the fact the circuit “was also concerned about the use of

studies of other organic solvents as a means of determining

the toxicity of TCA and PERC.” He goes on in paragraphs 9

and 10 to defend his use of other organic solvents. These

paragraphs confirm yet again that the purpose of Dr.

Morton’s affidavit is not to show what other admissible

evidence, available at the time of trial, would have been

sufficient to withstand a directed verdict on the neurological

injury claims.

Perhaps Dr. Morton is justified in his perception that he

has been wronged by the circuit. However, that is not

something which Dr. Morton or this court can do anything

about at this point in the proceedings. This court is obliged to

follow the circuit’s rulings, regardless of whether there is any

validity to Dr. Morton’s post-mortem defense of his

extrapolation methodology.

Declaration of Dr. Daniel Goldstein

The Ninth Circuit had this to say about Dr. Goldstein’s

trial testimony:

Dr. Goldstein conceded that only five organic solvents,

none of which were involved in this case, had been proven to

be neurotoxic. He also testified that it would be improper to

infer conclusions as to the toxicity of other solvents, and that

repeated exposure to nonpersistent toxins such as organic

A-42

solvents over a long period must be documented to establish a

causal relationship.

Dr. Goldstein acknowledged that the biochemical

mechanism of neurotoxicity from TCA and Perc has not been

demonstrated. Only two studies by Dr. Goldstein involved

TCA and Perc, and neither met Daubert standards. The

Altman study found no relationship between exposure to Perc

and the toxic encephalopath or loss of consciousness alleged

by plaintiffs. The Kalifant study involved long-term (7-15

years), repetitive exposures to TCA at high levels.

Schudel, 120 F. 3d at 997. Accordingly, the circuit found

scientifically unreliable Dr. Goldstein’s testimony that Perc

and TCA exposure caused neurological injuries in plaintiff

Williams.

Paragraph 5 of Dr. Goldstein’s declaration asserts as

follows:

The Ninth Circuit Court of Appeals has apparently been

mislead on my opinions and has taken my opinions out of

context. . . . I have requested counsel to (provide to this

Court a copy of my testimony that shows the Schudel opinion

to be wrong as to myself.

In the paragraphs of his declaration which follow, Dr.

Goldstein attempts to sow how the Ninth Circuit erred in

excluding his testimony. For example, in paragraph 7, Dr.

Goldstein attempts to show how the Ninth Circuit erred in

excluding his testimony. For example, in paragraph 7, Dr.

Goldstein asserts the circuit “overlooked my testimony that

there were other organic solvents present at the 1988 PCB

Kaiser Trentwood clean-up” which “are known and have been

scientifically shown to cause neurological injuries.” He

asserts “the method I used to analyze and apply the scientific

literature to the facts of the case are scientifically recognized.”

(Paragraph 15) (Emphasis added). He takes issue with the

circuit’s emphasis on the fact that the biochemical mechanism

of neurotoxicity from TCA and Perc has not been

demonstrated. (Paragraph 21). He claims that while he may

AAS

have conceded that 25 years ago there were only five organic

solvents proven to be neurotoxic, that did not mean the same

was true in 1994 at the time of the trial. (Paragraph 22). Dr.

Goldstein refers to the information he cited to the court prior

to and during the 1994 trial as showing that TCA and Perc

exposure Causes neurotoxic injuries. (Paragraphs 8, 9 and

11).

The concluding paragraph of Goldstein’s declaration

states:

The opinion of the {circuit} in Schudel v. General

Electric has taken my testimony out of context and also not

considered 98% of my reference in the well recognized peer-

reviewed scientific and medical literature that supported your

opinions. The circumstances of the 1988 PCB cleanup

involved chemicals that were known to and did [injure] the

workers of the clean-up.

This court fails to find any reference in Dr. Goldstein’s

declaration to causation evidence which was presented, or

which could have been presented at the 1994 trial, that is

materially different from the evidence which was before the

circuit.26 This court is simply not in a position to question

the correctness of the circuit’s ruling even if it was persuaded

the circuit misinterpreted Dr. Goldstein’s trial testimony or

failed to consider all of that testimony.

In her “Declaration on Dr. Daniel A. Goldstein’s

Testimony,” Marcia Meade, Esq., counsel for plaintiff

Carlson, echoes the statements in Dr. Goldstein’s declaration

and claims that “[a] major problem with the court of appeals

decision as to Merlin E. Carlson, Jr., is the Ninth Circuit has

made statements, where the record is absolutely contrary to

the Schudel Court’s statement.” Counsel asserts “the Court

of Appeals must not have reviewed the record he cited.”27

26 This includes Dr. Goldstein’s identification of chemicals present

at the clean-up, other than TCA and Perc. (Paragraph 17 of

Goldstein Declaration).

27 The declarations of Dr. Goldstein and counsel clearly reveal

their argument concerns the correctness of the circuit’s decision

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Whatever the truth of counsel’s allegations, the fact

remains there is nothing this court can do about it. The

remedy for any error in the circuit’s opinion was a petition for

rehearing and/or a petition for writ of certiorari. Indeed,

counsel (Ms. Meade) petitioned for rehearing en banc before

the circuit which was denied. (Appendix 3 to Defendant’s

Response).

Declaration of Dr. Paula Lantsberger

The Ninth Circuit said this about Dr. Lantsberger’s

testimony regarding plaintiff Williams:

Dr. Lantsberger’s testimony failed to meet Daubert’s

relevance requirement. She testified it was only a

‘possibility,’ not a ‘probability,’ that Williams’ exposure

suffered organic brain damage from exposure to solvents at

the facility. Dr. Lantsberger admitted she could not testify to

a specific cause and effect relationship between Williams’

exposure and health problems. She relied instead on a ‘whole

person aggravation’ theory without establishing that the

theory had a scientific basis.

Dr. Lantsberger’s testimony regarding the hazards of

TCA and Perc was inadmissible under Daubert. Dr.

Lantsberger, like Dr. Goldstein, relied on the Altman and

Kalifant articles to reach her neurotoxicity conclusions, and

like Dr. Goldstein admitted that medical science has not

determined the effects of short-term exposure to the solvents

involved.

Schuel, 120 F. 3rd at 997.

As discussed previously, Dr. Lantsberger, in addition to

testifying on behalf of plaintiff Williams, was the “only witness

on causation on behalf of the Schudel plaintiffs.” She offered

specific testimony regarding causation under two theories: 1)

a specific condition causation theory, and 2) “ whole person

aggravation” theory. Id. at 995. The_circuit agreed with

based on the record existing before the circuit. Their argument is

not that Dr. Goldstein should be entitled to present at a re-trial

“newly discovered evidence” consisting of facts existing at the time

of the initial trial, but of which he was excusably ignorant.

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Judge Van Sickle that Dr. Lantsberger failed to establish any

scientific basis for her “whole person aggravation” theory.

Neurological Injury

The declaration submitted by Dr. Lantsb« ger in response

to the show cause order says nothing abou the neurological

injury component of Williams’ negligence aim. Rather, the

declaration refers to Merlin Carlson and the Schudel plaintiffs.

The majority of the declaration discusses respiratory injuries.

The last two paragraphs of the declaration (Paragraphs 14 and

15) refer to neurological injuries:

During pre-trial and in trial . . . I identified for the

Court Dr. Sullivan’s text.28 In that text, there is a

description of ‘Solvent Syndrome’ . . . . Solvent

Syndrome is a condition that has been known for more

than 100 years. In Chapters 64 and 106 of [the] Sullivan

text there are multiple peer reviewed articles present in

the bibliography of each one of those chapters. It is my

opinion on a more probable than not basis that Merlin

Carlson, Dan Glass, Craig Thompson, David Schudel,

Tim Schudel, and Kathrene Howell Froese more probably

than not have Solvent Syndrome due to their exposure to

the toxic chemicals at the 1998 PCB cleanup.

I have reviewed Dr. William Morton’s [affidavit’

identifying the fact that physicians recognize and

routinely use extrapolation to correlate injuries to humans

from toxic substances. I am familiar with Casarett and

Doul’s textbook Toxicology, The Basic Science of

Poisons. In fact, I use a copy of that myself. I agree with

the opinions that Dr. Morton has expressed as to the use

of extrapolation and how extrapolation is used with

physicians.

(Emphasis added).

There is nothing here in the way of admissible causation

evidence, available at the time of trial, which Dr. Lantsberger

could have presented on behalf of plaintiff Williams, in lieu of

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the evidence found inadmissible by the circuit, which would

have been sufficient to withstand a directed verdict on the

neurological injury component of Williams’ negligence claim.

With regard to Carlson and the Schudel plaintiffs, all Dr.

Lantsberger provides is a wholly conclusory opinion that they

“more probably than not” have Solvent Syndrome due to their

exposure to the toxic chemicals at the 1988 PCB cleanup. Dr.

Lantsberger makes no attempt to show how what is contained

in the Sullivan text can allow her to reach such a conclusion

with regard to these plaintiffs.

Furthermore, Dr. Lantsberger states she identified the

Sullivan text during pre-trial and trial and therefore,

presumably relied upon it in her testimony regarding the

potential hazards of TCA and Perc. As noted, the circuit

found Dr. Lantsberger’s testimony in that regard was

inadmissible under Daubert because she admitted medical

science had not yet determined the_effects of short-term

exposure to TCA and Perc. Therefore, Dr. Lantsberger has

no reliable scientific basis for opining that TCA and Perc

exposure is the “more probable than not” cause of the

neurological injuries allegedly sustained by Carlson and the

Schudel plaintiffs.

Dr. Lantsberger states she agrees with Dr. Morton’s

extrapolation analysis. The Ninth Circuit found that analysis

scientifically unreliable. As noted above, Dr. Morton’s

affidavit merely alleges the circuit’s finding was in error. Dr.

Morton offers no other admissible evidence, available at the

time of trial, to support his conclusion that TCA and Perc

exposure “more probably than not’ caused Williams’ solvent-

induced toxic encephalopathy.

The court agrees with defendants that Dr. Lane’ s

opinion of TCA and Perc exposure being a “more probable

than not” cause of neurological injuries allegedly sustained by

Carlson and the Schudel plaintiffs is inconsistent with certain

testimony she gave during trial. In his “Order Re Post-Trial

Motions,” Judge Van Sickle noted that on direct examination,

Dr. Lantsberger testified she had reached the “same

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conclusion” with respect to Carlson’s “breathing problems”

that she had reached with respect to his “brain injuries,” in

[tJhat he has a similar pattern as the other coworkers, and that

the overall epidemiological data leads me to believe his

exposure in the work site is the joining factor of all the

physical problems.” (Order at p. 25) (Emphasis added). Dr.

Lantsberger added:

The other coworkers complaining of the same, similar

respiratory, cognitive, joint and body aches, leads me to

assume based on epidemiological look at the exposure, the

symptoms beginning about the same time frame, and

continuing subsequently leads me to believe that they are

associated with the exposure.

(Id.) (Emphasis added).

However, Judge Van Sickle also noted that on re-direct

examination, Dr Lantsberger testified, over objection, that

Carlson’s “pre-existing problems were aggravated by his

exposure at Kaiser on a more probable than not basis.” (Id.

at 26) (Emphasis added). Judge Van Sickle granted JNOV

only on the respiratory injury component of Carlson’s claim.

He did not grant JNOV on the neurological injury

component, finding that a reasonable jury could have found

for Carlson on that issue. Rather, Judge Van Sickle granted a

new trial on the neurological injury component of Carlson’s

claim because the verdict did not distinguish between

respiratory and neurological injuries.

In not granting JNOV on the neurological injury

component, Judge Van Sickle necessarily had to find there

was enough reliable and relevant scientific evidence for a jury

to reasonably conclude Carlson’s exposure caused his injury.

However, the Ninth Circuit’s opinion, finding unreliable the

neurological causation testimony of Drs. Morton, Goldstein

and Lantsberger, leaves no reason to hold a new trial on the

neurological injury component of Carlson’s claim.29 Carison

29 Judge Van Sickle did not rule that Goldstein and Morton’s

testimony was inadmissible. Hence, the defendants appealed to the

Ninth Circuit seeking to have it declared inadmissible. Judge Van

A-48

has not identified any other admissible scientific evidence,

available at the time of trial, to support the neurological injury

component of his claim. Therefore, he has failed to show

cause why that component of his claim should not be

dismissed with prejudice.

The same holds true for the Schudel plaintiffs and the

neurological injury component of their claims. Dr.

Lantsberger provided the only causation evidence on behalf of

the Schudel plaintiffs. Her neurological causation tnal

testimony was scientifically unreliable and there is nothing in

he declaration showing she could have provided other reliable

and relevant evidence (i.e. admissible evidence) at the time of

trial in support of the neurolo — injury component of the

claims of the Schudel plaintiffs. 3°

Sickle did rule that Lantsberger’s “whole person aggravation”

theory of causation was inadmissible.

30 In his “Order Re Post-Trial Motions,” Judge Van Sickle

questioned not only the scientific reliability of Lantsberger’s “whole

person aggravation” theory, but also the relevance of her

neurological causation tral testimony

With respect to Dan Glass, Judge Van Sickle found:

Regarding headaches and memory loss, Dr. Lantsberger was forced

to concede that she had been unable to find a cause-and-effect

relationship between Glass’ participation in the Kaiser cleanup and

his subsequent complaints. Thus, her testimony concerning those

conditions falls daz of the O’Donoghue standard [act complained

of probably or more likely than not caused the subsequent

disability] .

(Order at p. 29).

With respect to David Schudel, Judge Van Sickle found it

was “undisputed that Mr. Schudel did not sustain neurologic injury

as a result of his participation in the Kaiser cleanup” and therefore,

“a reasonable jury could not have found him on that issue.” (Order

at p. 30).

With respect to Craig Thompson, Judge Van Sickle found:

Dr. Lantsberger failed to link any of Mr. Thompson’s specific

complaints to the Kaiser project on a more-probable-than-not basis.

Her-fall-back was “aggravation,” a theory which does not meet the

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Respiratory Injury Claims

Dr. Lantsberger states that during her ppre-tnal

depositions, defense counsel asked her questions about

documents depositions, defense counsel asked her questions

about documents in files that were part of the workers’

compensation claims of David Schudel, Tim Schudel, Dan

Glass, Craig Thompson, Merlin Carlson, and Kathrene Howel

Froese. (Declaration at paragraph 4). Dr. Lantsberger notes

that in workers’ compensation, there is a regulation requiring

a physician to consider “whole body aggravation.”

(Declaration at paragraph 6). According to her:

During my trial testimony, I believe that matters became

somewhat confusing because the defense attorneys were

asking me about portions of my deposition which dealt with

workers’ compensation. Defendants were apparently

objecting when I answered questions in terms of how the

Department of Labor and Industries would address the

matter. During the course of my testimony I tried to explain

to the Court and to counsel that there is a difference between

what I do as a physician treating a patient as it would be in

civil litigation and what is done to answer the questions in

connection with a workers’ compensation claim

standards for admissibility established by Rule 702. It follows that

the jury’s verdict in Mr. Thompson’s favor was based upon

speculation, nothing more.

(Order at p. 32).

With respect to Tim Schudel, Judge Van Sickle found:

Tim Schudel obtained neuropsycological testing. While the

psychologist reported that it was possible that Schudel’s previous

learning disabilities had been aggravated, he could not say that

aggravation was reasonably certain. Indeed, as soon as Schudel

was counseled regarding the report’s findings, he quit complaining

of memory loss. Given those undisputed facts, a reasonable jury

could not have found for Mr. Schudel on the question of

neurological inqury.

That leaves Dr. Lantsberger’s aggravation theory. It is neither

scientifically or causally sufficient to support the jury’s verdict.

(Order at p. 33).

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(Declaration at paragraph 7)

Dr. Lantsberger goes on to say that plaintiffs’ counsel has

provided her with certain Washington Pattern Jury

Instructions (WPI 3rd 30.17 and 30.18) regarding

Washington law on aggravation of pre-existing condition.

She asserts these instructions have “helped clarify for me the

difference between what is done in a workers’ compensation

claim and what is done in civil litigation.” (Declaration at

paragraph 10). Based on these instructions, Lantsberger

asserts: 1) David Schudel, “on a more medical probable basis,

had an aggravation of his pre-existing lung condition from his

smoking; 2) Tim Schudel, “on a more medical probable

basis, had an aggravation of his pre-existing lung condition by

his toxic exposure to Hydrochloric Acid, Sodium Hydroxide

and Trimethylbenzene;” 3) Craig Thompson, “on a more

medical probable basis, had an aggravation of his pre-existing

smoking condition” and “a more probable permanent

aggravation of his pre-existing lung condition by his toxic

exposure to Hydrochloric Acid, Sodium Hydroxide and

Trimethylbenzene;” and 4) Daniel Glass, “on a more

probable medical basis, had an aggravation of his pre-existing

lung condition by his exposure to Hydrochloric Acid, Sodium

Hydroxide and Trimethylbenzene.”

It appears to the court that this is an untimely attempt by

Dr. Lantsberger to somehow rehabilitate or change her

“whole person aggravation” theory of causation which was

found deficient by both Judge Van Sickle and the Ninth

Circuit. Dr. Lantsberger’s declaration seems to suggest she

did not know, and plaintiffs’ counsel did not advise her before

or during trial that the standard used to evaluate workers’

compensation claims is insufficient in a civil lawsuit to recover

for personal injuries. -Frankly, the court considers this

preposterous. And in any event, a scientist’s primary concern

should be with the science, not the legal standards involved.

Dr. Lantsberger attempts, to no avail, to dress up her

“aggravation” theory in a different clothing: a civil litigation

standard instead of a workers’ compensation standard,

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aggravation of a specific condition instead of aggravation of

the whole person. The simple fact remains that both Judge

Van Sickle and the Ninth Circuit rejected Dr. Lantsberger’s

“aggravation” theory in all of its permutations. In their

appellate brief to the circuit, plaintiffs presented arguments

concerning Washington state law on aggravation of pre-

existing condition. (Appendix 4 to Defendant’s Response at

pp. 41-42). Plaintiffs also specifically cited the pattern jury

instructions appended to Dr. Lantsberger’s declaration. (id

at p. 43, n. 87).

Because Dr. Lantsberger’s “aggravation” theory is

scientifically unreliable, there is no need for discussion about

the relevancy of her “aggravation” opinions. However, this

court cannot ignore the fact that what Dr. Latsberger now

says without hesitation in her declaration, that exposure more

probably than not aggravated the pulmonary condition of each

of the plaintiffs, is quite different from what Judge Van Sickle

found based on his examination of her deposition and tnal

testimony.

Judge Van Sickle noted in his “Order Re Post-Tnal

Motions” that Dr. Lantsberger had seen Daniel Glass on three

occasions (October 1090; May 1990; and September 1991)

and that Glass had not reported respiratory problems on those

occasions, nor had Dr. Lantsberger diagnosed pulmonary

injury or disability As such, Lantsberger diagnosed

pulmonary injury or disability. As such, Judge Van Sickle

concluded a reasonable jury could not have found for Glass

on the respiratory injury component of his claim. Order at p.

29) 31 In her declaration, Dr. Lantsberger does not

satisfactorily explain either how Judge Van Sickle’s

conclusion is in error or what enables her to now say, based

on evidence available to her at the time of trial, that “on a

more probable medical basis, Glass had an aggravation of his

pre-existing lung condition by his exposure to Hydrochloric

31 Judge Van Sickle’s conclusion was based on his analysis of Dr.

Lantsberger’s deposition and trial testimony found at pp. 7-11 of the

“Order Re Post-Trial Motions.”

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Acid, Sodium Hydroxide and Trimethylbenzene.”

Judge Van Sickle observed that with regard to Glass’

heart palpitations, Dr. Lantsberger could only say they may

have been related to his industrial exposure. This was clearly

insufficient under the “more probable than not” standard of

causation established by Washington case law, specifically

’D v. Riggs, 73 Wn. 2d 814, 440 P.2d 823, 830

(168) (Order at p. 29). In an attempt to bridge the causal gap,

Dr. Lantsberger suggested Glass’ “whole person” had been

“ageravated.” Judge Van Sickle found this “fall-back theory”

did not constitute scientific knowledge and concluded that if

none of Glass’ specific symptoms could be linked to the clean-

up (heart palpitations, memory loss, headaches, etc.) , it was

simply impossible that his whole person could have been

aggravated.”32 Judge Van Sickle found Dr. Lantsberger’s

“whole ‘person ag

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