Pritchard v. Dow Agro Sci.S

705 F.Supp.2d 471

Robert T. PRITCHARD and Elizabeth Ann Pritchard, Plaintiffs,v.DOW AGRO SCIENCES, a division of Dow Chemical Company, Southern Mill Creek Products of Ohio, and Residex Products, Defendants.

Civil Action No. 07-1621.

United States District Court W.D. Pennsylvania.

March 11, 2010.

COPYRIGHT MATERIAL OMITTED

David B. Rodes, Goldberg, Persky & White, P.C., Pittsburgh, PA, for Plaintiffs.

Brad E. Rago, Barnes & Thornburg LLP, Chicago, IL, Kimberly A. Brown, Thorp, Reed & Armstrong, Pittsburgh, PA, Vincent M. Roskovensky, William E. Padgett, Barnes & Thornburg LLP, Indianapolis, IN, for Defendants.

MEMORANDUM OPINION

NORA BARRY FISCHER, District Judge.

I. INTRODUCTION

Presently before the Court is Defendants Dow Agro Sciences (“Dow”) and Southern Mill Creek Products of Ohio's (“Southern Mill”) Daubert motion challenging Plaintiffs Robert T. Pritchard and Elizabeth Ann Pritchard's proffer of expert testimony by Dr. Bennet Omalu. (Docket No. 127). Dr. Omalu opines that Mr. Pritchard's exposure to Dursban products, which were manufactured and sold by Defendants, caused him to develop Non-Hodgkin's Lymphoma (“NHL”). Defendants maintain that Dr. Omalu is not qualified to render his opinions in this case. They also argue that Dr. Omalu's opinions regarding both general causation and specific causation do not meet the reliability standards set forth in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and incorporated into Federal Rule of Evidence 702, and that his opinions do not fit the facts of this case. The motion has been fully briefed and the Court heard oral argument ¹ from counsel on November 17, 2009. Upon consideration of the parties' arguments, and for the following reasons, Defendants' motion [127] is GRANTED.

II. BACKGROUND ²

A. Factual Summary

The instant lawsuit is a toxic tort case in which Mr. Pritchard and his wife allege that chemicals manufactured and sold by Defendants Dow and Southern Mill caused Mr. Pritchard to develop NHL. (Docket No. 23 at ¶¶ 7-10, 20). Mr. Pritchard asserts claims of negligence and strict liability against Defendants, while Mrs. Pritchard asserts a claim for loss of consortium. (Docket No. 23). Plaintiffs do not claim any injuries to Mr. Pritchard caused by Defendants except those resulting from his development of NHL. (Docket No. 128-1, Exhibit 2 Email from David Rodes, Esq. to William Padgett, Esq. at 1).

Mr. Pritchard was diagnosed with NHL, specifically Diffuse Large B-Cell Lymphoma, not otherwise specified (“DLBCL NOS”), a form of cancer, in August of 2005. (Docket No. 128-1, Exhibit 3 Plaintiffs' Answers to Dow Agro Sciences LLC's First Set of Interrogatories to Plaintiffs dated Aug. 25, 2008 ). After treatment, his NHL went into remission in November of 2005. ( Id.). The parties do not dispute that Mr. Pritchard was diagnosed with NHL or DLBCL NOS. (Docket No. 152 at 42). The dispute surrounds whether Mr. Pritchard's exposure to Dursban products, and its active ingredients, including chlorpyrifos, is a legal cause of his disease.

The National Cancer Institute defines NHL as “[a]ny of a large group of cancers of lymphocytes (white blood cells).” Non-Hodgkin['s] Lymphoma, National Cancer Institute, available at: http:// www. cancer. gov/ cancertopics/ types/ non- hodgkin (last visited 3/5/10). NHL is a cancer that begins in cells of the immune system and can affect most areas of the human body. What You Need to Know About Non-Hodgkin['s] Lymphoma, National Cancer Institute, U.S. Department of Health and Human Services, National Institute of Health, at 2-3, available at: http:// www. cancer. gov/ cancertopics/ wyntk/ non- hodgkin- lymphoma. pdf. (last visited 3/5/10). DLBCL is “[a] type of B-cell non-Hodgkin['s] lymphoma (cancer of the immune system) that is usually aggressive (fastgrowing). It is the most common type of non-Hodgkin['s] lymphoma, and is marked by rapidly growing tumors in the lymph nodes, spleen, liver, bone marrow, or other organs. Other symptoms include fever, night sweats, and weight loss. There are several subtypes of diffuse large B-cell lymphoma.” Id. at 32. One of the subtypes of DLCBL is DLCBL NOS. (Docket No. 128-5, Exhibit 11, International Agency for Research on Cancer WHO Classification of Tumours of Haematopoietic and Lymphoid Tissues (“WHO Classification Study”), at 233 (4th ed.2008)). The American Cancer Society estimated that 65,980 new cases of NHL would occur in 2009. (Docket No. 128-1, Exhibit 5, American Cancer Society, Cancer Facts & Figures Excerpt-2009 (“ACS Excerpt”) at 15). The incidences of NHL have nearly doubled since the 1970s. Id. This increase is largely unexplained. Id. The World Health Organization estimates that 25-30% of adult NHLs in western countries are DLCBL NOS. WHO Classification Study at 233.

The etiologies or causes of NHL and its subtype, DCLCBL NOS, are generally unknown. Id.; see also ACS Excerpt at 15. But, several risk factors have been identified, including: people with severe immunodeficiency, human immunodeficiency virus (HIV), human T-cell leukemia virus type 1, hepatitis C virus; a family history of NHL; and occupational exposure to herbicides, chlorinated organic compounds and certain other chemicals. Id.

Dursban is a registered trademark owned by Dow Agro Sciences LLC. (Docket No. 128 at 4). “Dursban is the trade name for a group of insecticide products containing chlorpyrifos as the active ingredient.” ( Id.). The other ingredients in Dursban are Xylene-range aromatic solvents including Xylene, Cumene, and Ethyltoluene. (Docket No. 128-9, Material Safety Data Sheet for Dursban L.O. Insecticide ). “Chlorpyrifos was widely used in U.S. households until 2000, when the U.S. Environmental Protection Agency revised its risk assessment of this and other organophosphate pesticides and phased out or eliminated certain residential uses.” (Docket No. 138-5, Won Jin Lee et al., Cancer Incidence Among Pesticide Applicators Exposed to Chlorpyrifos in the Agricultural Health Study (“2004 Lee Study”), 96 J. Nat. Cancer Inst. 1781 (2004) at 1). Among other chemicals evaluated, the EPA has classified chlorpyrifos in Group E: Evidence of Non-Carcinogenicity for Humans. (Docket No. 128-9, Exhibit 24, List of Chemicals Evaluated for Carcinogenic Potential ). The other categories include Group A: Human Carcinogen; Group B 1: Probable Human Carcinogen; Group C: Possible Human Carcinogen; and, Group D: Not Classifiable as to Human Carcinogenicity. ( Id.).

B. Procedural History as to the Instant Motion

In support of their claim that Mr. Pritchard's exposure to Dursban caused his NHL, Plaintiffs identified Dr. Bennet Omalu as their expert on medical causation and submitted his expert report to Defendants on June 1, 2009. ( Dr. Omalu Report at 1). Thereafter, Plaintiffs supplemented Dr. Omalu's expert report by providing Defendants with a series of articles upon which Dr. Omalu relied. Dr. Omalu was then deposed on June 26, 2009. (Docket No. 128-1, Dr. Omalu deposition at 1).

Defendants filed their Motion to Exclude the Expert Causation Testimony of Dr. Bennet Omalu on July 22, 2009. (Docket No. 127). In support of their motion, Defendants attached voluminous exhibits including rebuttal experts reports authored by Marshall A. Lichtman, M.D., Seymour Grufferman, M.D. and Michael Greenberg, M.D. (Docket Nos. 128-1 through 128-9). Plaintiffs filed their Brief in Opposition to Defendants' Motion to Exclude on August 28, 2009, attaching the “Declaration of Bennet I. Omalu, MD, MBA, MPH.” (Docket No. 135).³ In response, Defendants filed their Reply brief on November 2, 2009, and a second appendix, including a rebuttal declaration from Seymour Grufferman, M.D. (Docket No. 149). The Court held a Daubert hearing on November 17, 2009 during which the parties presented no additional evidence, only arguing the legal issues in dispute.

After the Daubert hearing, the parties submitted supplemental briefing on whether the exclusion of Dr. Omalu's testimony violated the Erie doctrine, an argument which was raised and then more fully developed by Plaintiffs at the hearing. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Defendants filed their supplemental brief on January 4, 2010, while Plaintiffs submitted their supplemental brief on January 25, 2010. (Docket Nos. 154, 155).

In sum, the proffer of Dr. Omalu's testimony consists of opinions outlined in his expert report, portions of his deposition testimony and his declaration. Defendants take issue with this proffer.

III. DISCUSSION

In this action, both parties test the boundaries of Federal Rule of Evidence 702 and Daubert and the admissibility of a medical causation opinion by an expert in a toxic tort case. Defendants take a restrictive view of Rule 702 Daubert and its progeny, arguing that several deficiencies in Dr. Omalu's proffered testimony independently render his opinions per se inadmissible, requiring exclusion of Dr. Omalu without further analysis. Plaintiffs' position is much more liberal, and they maintain that their proffer is sufficient to meet the minimal requirements of Rule 702, Daubert and its progeny, arguing that Dr. Omalu's testimony should not be excluded. Alternatively, Plaintiffs contend that the application of certain principles advocated by Defendants violates the Erie doctrine. The Court has carefully considered the parties' respective positions and, based on the present record, finds that the methodology used by Dr. Omalu in reaching his opinions in this case is not reliable and, even if it was found to be reliable, his opinions are too speculative to “fit” the facts of this case. Accordingly, Plaintiffs have failed to establish that there are “good grounds” for permitting him to so testify.

A. Legal Standard

Federal Rule of Evidence 702, which memorializes the Supreme Court's landmark case Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113...