underlying the testimony is scientifically valid and . . . properly can be applied to the facts in issue." Id. at 2796; McCullock v. H.B. Fuller Co., 61 F.3d 1038, No. 94-7883, 1995 U.S. App. LEXIS 20246, at *9 (2d Cir. July 27, 1995) (quoting Daubert).
Among the factors which the trial court may consider in making this assessment are whether the theory has been or could be tested, whether it has been subjected to peer review and publication, and whether the theory enjoys general acceptance in the relevant scientific community. Daubert, 113 S. Ct. at 2796-97; McCullock, 61 F.3d 1038, 1995 U.S. App. LEXIS 20246, at *9. Neither peer review and publication nor general acceptance are dispositive in the reliability assessment. Daubert, 113 S. Ct. at 2797. Moreover, the Daubert Court recognized that theories which are "too particular, too new or of too limited interest" may not be published. Id. Thus, the trial court must make a flexible inquiry, focusing "solely on principles and methodology, not on the conclusions that they generate." Id.
Defendant here argues that the expert opinions of Drs. Herbert and Goldberg are based upon speculation, and are therefore inadmissible under Daubert. Defendants point to the lack of any peer review or publication of a theory that any ingredient of Hot Stuff causes diverticulosis. However, Dr. Herbert based his opinion upon over thirty years of experience as a physician, Board certified internist and nutritionist, and research into the ingredients of Hot Stuff and their pharmacological actions, and review of plaintiff's medical records. Additionally, Dr. Herbert ruled out the usual causes of diverticulosis to make his conclusion about the causation of plaintiff's injury.
Similarly, Dr. Goldberg researched the ingredients of Hot Stuff and the usual causes of diverticulosis and diverticulitis. She made the causation determination based upon her research, review of plaintiff's medical history and hospitalization records, and clinical experience with 10,000 patients, solely in gastroenterology. Thus, both Drs. Herbert and Goldberg based their opinions on scientific knowledge, and are sufficiently reliable to constitute admissible expert testimony. See Daubert, 113 S. Ct. at 2796-97; McCullock, 61 F.3d 1038, 1995 U.S. App. LEXIS 20246, at *14. As recently decided by the Second Circuit, the fact that the expert's theories were not subject to peer review and publication or general acceptance goes to the weight of their testimony rather than its admissibility. See McCullock, 61 F.3d 1038, 1995 U.S. App. LEXIS 20246, at *14-15.
In McCullock the defendant objected to admission of expert testimony that hot melt glue fumes caused throat polyps. Defendant argued that no piece of medical literature was cited which made that conclusion, and that the expert's use of differential etiology to reach his conclusion was not scientific under Daubert. The Second Circuit rejected defendant's arguments, holding that the factors upon which the expert based his conclusion constituted scientific knowledge under Daubert and the testimony was properly admitted. McCullock, 61 F.3d 1038, 1995 U.S. App. LEXIS 20246, at *14-15. The expert relied upon his care and treatment of the plaintiff, review of plaintiff's medical history, review of plaintiff's medical and surgical reports, pathological studies, review of defendant's Material Safety Data Sheet on the hot glue, his training and experience, and use of the scientific analysis of differential etiology, and reference to various scientific medical treatises. Id. at *14. Defects in differential etiology, the process of listing all possible causes then eliminating all but one, as a methodology, was found to go to the weight of the expert's opinion rather than its admissibility. Id. at *14-15 (citing Daubert, 113 S. Ct. at 2798.
Similarly, in this case both Drs. Herbert and Goldberg used the differential etiology methodology as a factor in forming their opinions. Although never using the "differential etiology" terminology, both doctors clearly considered all possible causes of plaintiff's diverticulosis then eliminated all but one. Moreover, they both based their opinions on a variety of factors, including medical history, reference to scientific and medical treatises and articles, and their training and experience. Thus, lack of other published works making the same conclusion is not fatal to the sciential nature of the experts' principles and methodology. See Daubert, 113 S. Ct. at 2797; McCullock, 61 F.3d 1038, 1995 U.S. App. LEXIS 20246, at *14-15.
B. FDA Complaint Reports
Defendant moves the court to exclude FDA complaint/injury reports because the reports are inadmissible hearsay and their prejudicial effect clearly outweighs any probative value. These records, however, clearly fall within the public records and business records exceptions. See Fed. R. Evid. 703, 803. Moreover, the probative value of these records is not substantially outweighed by the danger of unfair prejudice. See id. 403.
The proffered testimony of plaintiff's qualified experts, Victor Herbert, M.D., J.D., and Heidi Goldberg, M.D., as well as FDA complaint/injury reports, are admissible into evidence.
Accordingly, it is hereby
ORDERED, that defendant's motions in limine are DENIED.
IT IS SO ORDERED.
David N. Hurd
U.S. Magistrate Judge
Dated: September 5, 1995
Utica, New York.