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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 887

## Text

Supreme Court. U i
cy Le 5 -

02 208 sus gan

No.

In The
Supreme Court of the United States

4.

os

MERLIN E. CARLSON, JR.

Petitioner.

v.
GENERAL ELECTRIC COMPANY, a foreign corporation;
KAISER ALUMINUM AND CHEMICAL
CORPORATION, a foreign corporation,

Respondents

y
4

On Petition for Writ Of Certiorari
to the United States Court of Appeals
for the Ninth Circuit

y%
a

PETITION FOR WRIT OF CERTIORARI

4.

vv

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.

iv

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+

vi

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

15

23
25

Page

Al

A5

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

x1

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,
25

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,
25
Federal Rules of Civil Procedure, Rule 50.......... 10, 13,
25
Federal Rules of Civil Procedure, Rule 50(a)..... 4,7
Federal Rules of Civil Procedure, Rule 50(b)..... 2/7,
é
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.

10

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

11

"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:

12

“[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

13

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.

14

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

15

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

16

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).

17

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.

18

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.

24

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

aA

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,

v.
GENERAL ELECTRIC CO.,
a foreign corporation, KAISER
ALUMINUM AND CHEMICAL
CORPORATION, a foreign
corporation,
Defendants-Appellees.

eee eee

A6

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

A.
[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.

B.
[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.)

(c) Re-direct examination of Dr. Lantsberger

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.

(c) The defendants are granted judgment as a matter
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. Lantsber

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0225%3A1. Public record. Not legal advice.