Ezra v. DCC Litig. Facility, Inc. (In re Dow Corning Corp.)

541 B.R. 643

In re: Dow Corning Corporation, Reorganized Debtor.Beverly J. Ezra, Plaintiff,

v.DCC Litigation Facility, Inc., Defendant.

Civil Action No. 05-30469-DT

United States District Court, E.D. Michigan, Southern Division.

Signed September 30, 2015

James L. Elsman, James Leonard Elsman Assoc., Birmingham, MI, for Plaintiff.

Lamont E. Buffington, Dow Litigation, Timothy J. Jordan, Garan Lucow, Detroit, MI, for Defendant.

ORDER GRANTING MOTIONS TO EXCLUDE EXPERT OPINIONS, GRANTING RENEWED MOTION FOR SUMMARY JUDGMENT, DENYING REQUEST FOR SANCTIONS AND JUDICIAL NOTICE AND DISMISSING ACTION

DENISE PAGE HOOD, United States District Judge

I. BACKGROUND/FACTS¹

This matter is before the Court on renewed motions filed after the matter was remanded back to this Court from the Sixth Circuit Court of Appeals.²Responses and replies have been filed.

Plaintiff Beverly J. Ezra opted out of the settlement process before the Settlement Facility-Dow Corning Trust (“SF-DCT”) as provided under the Dow Corning Amended Joint Plan of Reorganization (“Plan”). The Effective Date for the confirmed Plan was June 1, 2004. (April 2, 2004 Order Establishing Effective Date, Bankruptcy Case No. 95–20512) Pursuant to the Plan, claimants who choose to litigate their claims must file claims against the DCC Litigation Facility (“Litigation Facility”). (Plan, Art. 5.4, 6.1) After unsuccessful attempts to resolve the matter under the procedures set forth in the Plan, the case was certified to go forward with trial preparation on October 29, 2009. (Doc. No. 19) The Court issued scheduling orders in this matter. On May 7, 2010, Ezra filed a Complaint and the Litigation Facility filed an Answer on May 14, 2010. Discovery was held, in addition to mediation and settlement conferences held under the guidance of the Special Master.

Ezra filed the instant action claiming various illnesses and medical conditions, including: muscle aches and pains all over her body; metallic taste in the mouth; chronic problems with diarrhea; dizziness/vertigo problems; chronic low-grade fevers; frequent yeast infections; chronic fatigue; severe headaches; loss of taste and smell; memory loss and loss of concentration; frequent gastrointestinal problems; sinus problems with ear aches; difficulty swallowing; problems with choking; easily bruised with slow healing of bruises and cuts; spider veinson legs and feet; coldness of hands, fingers, feet, toes and face; muscle spasms; problems with rashes; tingling and numbness in extremities; difficulty breathing; unexplained dental problems; excessive hair loss; as well as emotional, physical and financial losses. Ezra claims these conditions were caused by the Surgitek gel-filled silicone elastomer breast implantsplaced in 1984 and/or the ICU textured saline implants which replaced the Surgitek implants in 1993, and/or the raw silicone materials used to manufacture her implants. (Complaint, Doc. No. 26; Doc. No. 31, Motion, Ex. 1, Questionnaire, Pg ID 2120-2120)

On March 28, 2013, the Court entered an Order Granting the Litigation Facility's Motion for Summary Judgment based on Plaintiff's Failure to Provide Any Evidence of General Causation. (Doc. No. 73) On December 4, 2013, the Sixth Circuit Court of Appeals entered an order reversing this Court's decision and remanded the matter for further proceedings. (Doc. No. 81) The mandate issued on March 5, 2014. (Doc. No. 82) On remand, Ezra filed a Motion to Transfer the Case to Nevada and the Litigation Facility filed a Motion to Certify the Issue to the Michigan Supreme Court. (Doc. Nos. 85, 87) The Court denied both motions in an Order filed December 9, 2014. (Doc. No. 95) The Court addresses all pending motions below.

It is noted that the renewed motions regarding the experts and the summary judgment were not previously ruled upon by the Court as argued by Ezra. The Court's previous ruling that was before the Sixth Circuit of Appeals was limited to the issue of “general causation” and did not address the Daubertissues relating to the specific experts.

II. ANALYSIS

A. Experts

1. Expert Testimony Standard

In federal diversity actions, state law governs substantive issues and federal law governs procedural issues. Legg v. Chopra,286 F.3d 286, 289 (6th Cir.2002). Rules of evidence are deemed rules of procedure. Id.The Federal Rules of Evidence, rather than state evidentiary laws, apply in federal diversity proceedings. Id.; Barnes v. Owens–Corning Fiberglass Corp.,201 F.3d 815, 829 (6th Cir.2000); Grossheim v. Freightliner Corp.,974 F.2d 745, 754 (6th Cir.1992); Laney v. Celotex Corp.,901 F.2d 1319, 1320 (6th Cir.1990). The federal rules themselves provide that they “apply generally to civil actions and proceedings.” Fed.R.Evid. 1101(b); Legg v. Chopra,286 F.3d 286, 289 (6th Cir.2002). The Sixth Circuit has stated that “[t]he admissibility of expert testimony is a matter of federal, rather than state, procedure.” Brooks v. Am. Broad. Cos.,999 F.2d 167, 173 (6th Cir.1993).

Rule 702 of the Rules of Evidence governs the admissibility of expert testimony. The trial court must determine whether an expert meets the requirements under Rule 702: 1) that the witness establish his expertise by reference to knowledge, skill, experience, training or education; 2) the proffered testimony is reliable in that it is based on scientific, technical or other specialized knowledge; and 3) the expert's testimony assists the trier of facts in understanding and disposing of the issues relevant to the case. Fed.R.Evid. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc.,509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court set forth factors to be considered in determining whether to admit expert testimony involving scientific issues. The four factors are: 1) whether a theory or technique can be (and has been) tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error in using a particular and scientific technique and the existence and maintenance of standards controlling the technique's operation; and 4) whether the theory or technique has been generally accepted in the particular scientific field. Id.at 593–94, 113 S.Ct. 2786. The factors are neither definitive, nor exhaustive, and may or may not be pertinent to the assessment in any particular case, such as issues involving non-scientific matters. Kumho Tire Co. v. Carmichael,526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The factors will often be appropriate in determining reliability. Id.at 152, 119 S.Ct. 1167. The trial court has broad latitude to determine whether these factors are reasonable measures of reliability in a particular case. Id.at 153, 119 S.Ct. 1167.

The trial court, when evaluating evidence proffered under Rule 702, must act as a gatekeeper, ensuring “that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Pluck v. BP Oil Pipeline, Co.,640 F.3d 671, 677 (6th Cir.2011)(qouting Daubert,509 U.S. at 589, 113 S.Ct. 2786). The trial court must consider “whether the reasoning or methodology underlying the testimony is scientifically valid.” Id.(quoting Daubert,509 U.S. at 592–93, 113 S.Ct. 2786). Although the trial court's inquiry is flexible, an expert who presents testimony must employ in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Id.(quoting Best v. Lowe's Home Ctrs., Inc.,563 F.3d 171, 176–77 (6th Cir.2009)and Kumho Tire,526 U.S. at 152, 119 S.Ct. 1167). Exclusion of expert testimony may result in the entry of summary judgment and is reviewed on appeal for abuse of discretion. Meridia Prods. Liab. Litig. v. Abbott Labs.,447 F.3d 861, 868 (6th Cir.2006).

2. Dr. Jerry Bush

The Litigation Facility seeks to exclude the expert opinion testimony by Dr. Jerry Bush raising the following reasons: 1) Dr. Bush is not qualified to offer causation opinions in this case; 2) Dr. Bush cites no evidence that Ezra was exposed to silicone gel; 3) Dr. Bush failed to consider contrary scientific evidence endorsed by the medical and scientific community; 4) Dr. Bush made no independent analysis or methodology of Ezra's claims; and, 5) Dr. Bush's opinions are speculative and based on temporal sequence only to prove causation.

The Litigation Facility argues that Dr. Bush does not even have the minimum qualifications required by the Federal Rule of Evidence 702to offer opinions on the cause of autoimmune diseases. The Litigation Facility asserts that Dr. Bush admits he has no expertise in the fields of immunology, rheumatology, autoimmune diseasesor allergic reactions, or epidemiology. (Bush Dep. at 53-54) The Litigation Facility claims that Dr. Bush is a part-time internal medicine doctor who has divided his workload into four roughly equal parts: internal medicine practice; prescribing the synthetic opiate Suboxene to drug users; conducting social security exams and drafting reports; and testifying as a paid expert witness in a wide range of cases, many involving drug and alcohol intoxication issues. (Bush Dep. at 37, 39-41) Dr. Bush has never been retained, testified or designated as an expert regarding the effects of exposure to silicone breast implantsor their components or relating to autoimmune diseaseissues. (Bush Dep. at 42, 58-59) Dr. Bush was retained one week before the March 31, 2011 expert deadline date only after a plaintiff in a companion case located him through Internet searches. The Litigation Facility claims Dr. Bush's report contains no discussion of autoimmune disease, no independent analysis regarding how or why plaintiff's conditions constitute autoimmune diseasesand no reference to any texts, treatises, or authorities regarding autoimmune diseases. Dr. Bush admits to performing no research on the issues of whether silicones are capable of causing rheumatoid arthritisor any other type of autoimmune diseaseor symptoms and...