OPINION AND ORDER
CONNER, Senior D.J.:
Plaintiffs Frank, Ellen, Deanna and Theresa Mancuso ("the Mancusos") brought this action against Defendants Consolidated Edison Co. of New York ("ConEd"), as a citizen suit under the Clean Water Act, see 33 U.S.C. § 1365, with pendent claims under New York state law for personal injuries and property damage allegedly caused by PCB contamination of their property. On November 3, 1995 we issued an Opinion and Order reaffirming Judge Broderick's dismissal of plaintiffs' state law claims for property damage because they are barred by the statute of limitations. ConEd now brings a two-part motion: 1) in limine, under the authority of Daubert v. Merrell Dow Pharm., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993) and FED.R.EV. 702, seeking an order excluding the testimony of Drs. Schwartz and Dietrich, two of the Mancusos' experts on their personal injury claims; (2) granting partial summary judgment against the Mancusos on all of their personal injury claims pursuant to FED.R.CIV.P. 56(b). For the reasons discussed below, we grant ConEd's motion in limine to exclude the testimony of Dr. Schwartz, but deny its motion to exclude that of Dr. Dietrich. We also deny ConEd's motion for summary judgment.
In October 1987, plaintiffs purchased Echo Bay Marina from Robert Kolasch. Frank Mancuso personally ran the marina, and his family "spent a lot of time" there. In the summer of 1988, they decided to move to the premises, (F. Mancuso Trans. at 1399), where they resided for approximately four and one-half years. (Comb. Stmt. P 112). The marina is adjacent to an electrical substation owned and formerly operated by ConEd. PCBs were used in some of the equipment at the site, particularly in several transformers. ConEd ceased using the substation in 1981 and has since been engaged, intermittently, in dismantling and cleaning it up under the watchful eye of the New York State Department of Environmental Conservation (NYSDEC).
The parties offer widely differing views of the historical and current levels of PCBs in the soil at the ConEd cite and on the Mancusos' property, and of the threshold level of PCBs that constitute a health and safety risk. Plaintiffs devote many pages of their submissions to evidence that there have been, and may still be, highly elevated levels of PCBs at the Echo Avenue Substation. For example, they point out that a 1987 test of a soil sample revealed a PCB level of 5400 ppm in the rear yard of the substation. (Pl. Comb. Stmt. P 67.) In page after page of their "Combined Statement" plaintiffs enumerate the levels of PCBs in some of ConEd's equipment, such as transformers that were built using oil containing PCBs. They also describe in detail the soil contamination levels in certain spots on ConEd's property, particularly near the transformer moats. (See e.g. Pl. Comb. Stmt. PP 39-40, 46-47, 48A-H, 50-59.) These PCB levels are much higher than those on the Mancusos' property. Plaintiffs' own expert, Dr. Webber, conducted an analysis in 1994 that revealed soil concentrations on the Mancusos' property ranging from a low of 3.46 ppm to a high of 7.31 ppm by weight. (Exh. L.)
ConEd's expert tested forty samples from the Mancuso's property: 34 had PCB levels less than 1 ppm; 5 had levels between 1 ppm and 1.37 ppm, and a sample had 232 ppm. (See Id. Exh. M.)
In response, ConEd urges that with the exception of the 232 ppm sample, the numbers on the Mancusos' property are low. It points out that the Food and Drug Administration ("FDA") allows fish with 2 ppm PCBs to be sold for human consumption and food sold for human consumption to be wrapped in paper containing PCB levels of 10 ppm. 21 C.F.R. § 109.30(a)(7). Plaintiffs counter that N.Y.S. Department of Health issues advisories warning residents not to eat marine bluefish and striped bass, or eels from the Long Island Sound more than once a week. (See Pl. Ltr. of 5/20/97 at 14.) We note, however, that in 1986 the City of New Rochelle's environmental consultant stated in a report that "it appears that much of the [ substation ] site, but in particular the northwest corner, is contaminated with trace levels of PCBs and appreciable amounts of oil." (Pl. Comb. Stmt. P 60 (emphasis added).)
With regard to the threshold levels of PCBs that cause harm to humans, the Mancusos point out that NYSDEC determined that the requisite clean-up level for PCBs in the soil at Echo Bay is 1 part per million (ppm) under both New York State Department of Health and EPA regulations. (See 7/22/93 NYSDEC internal memo and 2/28/94 NYSDEC Ltr. to ConEd's Manager of Waste Programs, attached to Pl. 4/23/97 Ltr. "Item # 36".) They argue that anything over these levels is unsafe, that ConEd has not satisfactorily cleaned up the site and that PCBs from the site have migrated to the air, soil and water of their property and have caused various family members who worked and/or resided on the property to suffer numerous physical ailments. Frank Mancuso, 49, complains of baldness, a patch of discoloration on his leg, irritation of hair follicles on his arms, past fatigue, headaches and acne. Ellen Mancuso, 40, complains of a recurring rash and irritated hair follicles. Deanna, 14, complains of recurrent post-nasal drip and rashes. Theresa Mancuso, 6, who was born while the Mancusos were living at the Marina, allegedly suffers from temper tantrums, a learning disability and occasional rashes as a result of prenatal exposure to PCBs. All four family members allege that as a result of exposure to PCBs they suffer from "sensitization syndrome," i.e. hypersensitivity to common chemicals, although the only manifestation of this "syndrome" in the record appears to be Deanna's post-nasal drip. ConEd vigorously contests plaintiffs arguments regarding "safe" levels and their assertions that their injuries were caused by PCBs.
Essential to plaintiffs' case is the expert testimony of Drs. Howard Schwartz and Jeanne Dietrich. If permitted to take the stand, Dr. Schwartz would testify that in his opinion, plaintiffs' aforementioned ailments were caused by exposure to PCBs emanating from ConEd's substation. Dr. Dietrich would testify that Theresa Mancuso suffers from a learning disability. ConEd has moved to preclude Dr. Schwartz's and Dr. Dietrich's testimony under Fed.R.Ev. 702, as construed in Daubert.
I. Legal Standards for the Admission of Expert Testimony
In a landmark 1993 decision, the Supreme Court held that the traditional Frye rule barring expert testimony that was not based on a theory generally accepted by the scientific community had been superseded by the adoption of the Federal Rules of Evidence, in particular by Rule 702 which governs the admissibility of expert testimony. Daubert v. Merrell Dow Pharm., 509 U.S. 579, 587-88, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
FED.R.EV. 702. The Court was quick to warn that Frye's displacement by the Rules of Evidence does not mean that the "rules themselves place no limits on the admissibility of purportedly scientific evidence." Daubert, 509 U.S. at 589. "To the contrary, under the Rules, the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id.
The Court then elaborated on the test lower courts must apply in evaluating scientific evidence under the Federal Rules. It explained that under Rule 702 "the adjective 'scientific' implies a grounding in the methods and procedures of science. Similarly, the word 'knowledge' connotes more than subjective belief or unsupported speculation." Id. at 589-590. It provided five factors that judges must examine in order to determine whether an expert's testimony is "scientifically valid" 1) whether the theory had been tested, 2) whether it had been subjected to peer review, 3) what the potential or known rate of error is, 4) what sort of standards control the technique's operation, 5) whether the theory or technique has been generally accepted. Borawick v. Shay, 68 F.3d 597, 610 (2d Cir.), cert. denied, 134 L. Ed. 2d 966, 116 S. Ct. 1869 (1996), (citing Daubert, 509 U.S. at 593-94). Furthermore, in order to "assist the trier of fact to understand the evidence or to determine a fact in issue," the evidence must "fit" the inquiry. This means that there must be a "valid scientific connection to the pertinent inquiry as a precondition of admissibility." Daubert, 509 U.S. at 591-92.
The Second Circuit has interpreted these guidelines to require that "expert testimony should be excluded if it is speculative or conjectural," "or if it is based on assumptions that are 'so unrealistic and contradictory as to suggest bad faith' or to be in essence an 'apples and oranges comparison.'" Boucher v. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) (citations omitted). Moreover, Rule 703 gives district courts discretion "to determine whether the expert acted reasonably in making assumptions of fact upon which he would base his testimony." Id.3 "Other contentions that the assumptions are unfounded 'go to the weight, not the admissibility, of the testimony.'" Id. A trial judge has "broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous." Id. We must now apply these principles to determine the admissibility of the testimony of Dr. Schwartz and Dr. Dietrich.
II. Dr. Schwartz
In support of its motion to exclude the testimony of Dr. Schwartz, ConEd makes three basic arguments. First, it contends that Dr. Schwartz does not have sufficient knowledge or experience to express an expert opinion that PCB exposure caused plaintiffs' ailments. Second, it argues that Dr. Schwartz failed to follow proper scientific methods in arriving at his conclusions. Third, it contends that scientific literature on PCBs establishes that PCBs were not the cause of plaintiffs' ailments. For the reasons set forth below, we agree with ConEd on its first two points, but decline to reach the third.
A. Dr. Schwartz's Qualifications
Rule 702 requires that an expert be sufficiently qualified in order to testify. FED.R.CIV.P. 702. In general, this qualification requirement has been interpreted liberally. See In Re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir.), cert. denied, 115 S. Ct. 1253 (1995). In Paoli, the Third Circuit held that "exclusion is improper simply because an expert does not have the appropriate degree or training." Id. There, the court allowed an internist who had spent "significant time reviewing the literature on PCBs" to testify that they caused the plaintiffs' illnesses. Id. at 754. The Second Circuit apparently follows this liberal interpretation. It has allowed an otolaryngologist to testify that a throat problem was caused by exposure to glue fumes, dismissing defendant's argument that the witness was not qualified because he was not an expert in environmental medicine as an "unwarranted expansion of the gatekeeper role announced in Daubert." McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1043 (2d Cir. 1993). Although he did not have formal training, the court concluded that the witness' "extensive practical experience" qualified him to testify. Id.
Although the qualification requirement is liberally construed, it is not a nullity. After a careful analysis of Paoli, the New Jersey District Court disqualified a pulmonologist from testifying that plaintiff suffered from a platinum allergy. Diaz v. Johnson Matthey, Inc., 893 F. Supp. 358, 372-373 (D.N.J. 1995). The district court observed that the witness was neither an epidemiologist nor a toxicologist, and that he had "no other qualifications other than his medical education and his years practicing as a pulmonologist." Id. It noted that he had only "casually studied the literature on platinum allergy," skimming several articles that he was unable to remember clearly, and that he had never previously treated a patient suffering from a platinum allergy. Id. Similarly, another district court found a witness who was educated as a pediatrician, pharmacologist, and toxicologist unqualified to testify regarding the cause of birth defects because he had merely reviewed selected literature on the subject for the purposes of litigation. Wade-Greaux v. Whitehall Labs, Inc., 874 F. Supp. 1441, 1476 (D.V.I.), aff'd without opinion, 46 F.3d 1120 (3d Cir. 1994).
In support of its contention that Dr. Schwartz does not have the proper qualifications to testify that PCBs caused plaintiffs' injuries, even under Rule 702's lenient standard, ConEd asserts that:
Dr. Schwartz is an internist who specializes in testifying for plaintiffs in medical malpractice cases. (Exh. S [Schwartz Trans.], p. 13). Although he is constantly in court, he has never testified in a toxic tort case and has never been qualified as an expert in an environmental case (Exh. S, p. 37-38, 52). He is not a toxicologist; has treated patients exposed to PCBs only twice (in the late 1960's and early 1970's); has no training in environmental medicine, occupational medicine, or PCBs; has no experience in giving lectures/seminars on PCBs or even attending such lectures; and has written no articles on toxicology, environmental diseases or toxins (id. at 51, 53, 75-76). Last, but certainly not least, plaintiffs' lawyer had to give Dr. Schwartz books to acquaint him with the possible health effects of PCBs and did so after Dr. Schwartz had reached his conclusions (id. at 103-104, 167).
(Def. Br. at 25.)
These assertions are largely accurate; indeed, almost all of them are taken from Dr. Schwartz's own testimony.
While he admitted that he has no training in environmental medicine, he stated that in the course of his training "many patients had environmental problems and that was encompassed within the field of internal medicine." (Schwartz Trans. at 66.) While Dr. Schwartz need not be a specialist in environmental medicine in order to testify as an expert, see McCullock, supra, he must have some specialized knowledge regarding the effects of PCBs on living creatures, either as a result of training or experience. He appears to have neither.
Dr. Schwartz testified that although he had no formal training regarding PCBs, he had "informal" training, through his "own self-education probably beginning with the early 1980's." (Schwartz Trans. at 69.) He stated that he "self-educated" himself "by reading journals." (Id.) "I must say," he added, "I came upon the initial readings as I recall accidentally. I didn't at that point even know what the word dioxin meant. I thought they misspelled the word and mean digoxin. When I first encountered the word, I recognized it was a term I had not known before the 1980's." (Id.) In total, he estimated that before the Mancusos came to him, he had read 40 or 50 articles since the early 1980's, "either in part or complete, on some aspects of PCBs." (Id. at 70-71.) He explained that he read these journals because endocrinology and metabolism were areas of strong interest to him and that these articles mainly brought out "similarities between the manner in which hormones are degraded in animals and similarities to the way some of these materials [PCBs] are degraded but these were not clinical journals." (Id.). Generally, given the lenient standard applied to an expert's qualifications, we might accept such "self-education" as sufficient to permit him to testify. However, his assertions that he "self-educated" himself on PCBs are controverted by several troubling facts in the record.
First, Dr. Schwartz's alleged expertise in the toxic effects of PCBs is belied by the fact that when his initial expert report, dated March 31, 1995, was rejected as insufficient by Magistrate Judge Fox, apparently because it failed, inter alia, to list the "data and other information considered by the witness" in forming his opinion that plaintiffs' injuries were caused by PCBs, as required under FED.R.CIV.P. 26(a)(2)(B), plaintiffs' attorney sent Dr. Schwartz a "large number of documents," including at least two reference books on PCBs.
(Id. at 187, 166-167.) In Dr. Schwartz's amended report of July 27, 1995, he lists the two books given to him by plaintiffs' attorney as the first two references upon which he relies. (Supl. Rept. at 2, Exh. NN.) This court cannot understand why a medical doctor, offered as an expert in diagnosing PCB exposure, would need to rely upon the attorney for the plaintiff to supply him with the relevant scientific literature on PCBs. We cannot help but conclude that Dr. Schwartz was not in fact an expert in PCBs when he was hired by plaintiffs, but that he subsequently attempted, with dubious success, to qualify himself as such by a selective review of the relevant literature.
The second troubling fact is that despite his testimony that he had read 40 or 50 articles over the course of fifteen years before authoring his initial opinion, and that he subsequently performed approximately 14-15 hours of library research and review before authoring his supplemental opinion and appearing for his deposition, (Schwartz Trans. at 184-5), Dr. Schwartz was unable to answer critical questions regarding PCBs. For example, Dr. Schwartz's deposition testimony revealed that he had no clear idea what levels of PCB contamination would be dangerous to humans. When asked to differentiate between an "elevated" and a "normal" PCB level in soil, he testified that he did "not have an opinion as to what an acceptably normal number would be." (Id. at 133 (emphasis added).) In fact, when pressed to be more specific, Dr. Schwartz speculated that 1 part per billion (ppb) would be an acceptable level.
(Id. at 114, 133, 178; Pl. Comb. Stmt. P 138.)
This court has found no support in the record for Dr. Schwartz's statements regarding an acceptable level of one ppb in soil, even in plaintiffs' own submissions. While Dr. Webber does opine in his July 3, 1993 report that 42 ppb is the appropriate NYSDEC Department of Fish and Wildlife standard for sediment PCB levels at Echo Bay, (Exh. 1),
Dr. Schwartz apparently believed that the ppb standard applied to soil, (Schwartz Trans. at 179 ("based upon what I observed in his [Dr. Webber's] reports of the numbers such as in the 40's, 40 milligrams or so per kilogram of soil is very substantially elevated, more than a thousandfold above the range that it should be which would be micrograms per kilogram . . . .") (emphasis added)). Plaintiffs argue that this court should consider the regulatory levels set by the NYSDOH and the EPA to be "Safety Limits." These levels are 1 part per million (ppm) for soil, 1,000 times the 1 ppb limit Dr. Schwartz theorized. (See 2/28/94 NYSDEC letter to Konrad, attached to Pl. 4/23/97 Ltr. "Item # 36".) Such complete unawareness of or confusion about basic standards of PCB toxicology raises serious doubts about the efficacy of Dr. Schwartz's attempted "self-education."
Lastly, unlike the witness in McCullock, supra, Dr. Schwartz does not have "extensive practical experience" to substitute for his lack of formal training. In fact, he has almost no prior experience diagnosing the effects of PCB exposure. He testified that the only patients suffering from PCB exposure he could recall treating were a dozen or so firefighters he believed suffered from inhalation of smoke contaminated by PCBs. (Schwartz Trans. at 53-58.) He did not identify any symptoms which he concluded were caused by their PCB exposure, nor state the scientific basis for any such conclusion. He saw these patients over 20 years ago, in the late 1960's, "possibly" into the early 1970's. (Id.) Certainly this extremely limited experience with treating the effects of airborne PCBs does not amount to "significant practical experience." We note additionally that he apparently has no experience in treating patients complaining of illnesses resulting from an exposure to PCBs in soil or water.
Given Dr. Schwartz's lack of formal training and credentials in general or PCB toxicology, or in environmental or occupational medicine, his inability to answer basic questions about PCB toxicology, his reliance upon plaintiffs' attorney to provide him with the scientific literature he relied upon to support his opinion, and his extremely limited experience in treating patients suffering from PCB exposure, we do not believe that Dr. Schwartz has the requisite qualifications to testify that plaintiffs' ailments were caused by exposure to PCBs, even under the lenient standards of Rule 702. Although we would be justified in ending our analysis here, we decline to do so however, because we believe that even if Dr. Schwartz were to be considered to have sufficient qualifications to be competent to testify that PCB exposure caused plaintiffs' ailments, and that his lack of credentials and experience properly goes only to the weight of his testimony, we believe that the methodology he used to ascertain the cause of plaintiffs' complaints was so fundamentally flawed that his testimony in this case would still be inadmissible.
B. Dr. Schwartz's Methodology
As discussed in Part I, above, in order to qualify as "scientific knowledge" under Rule 702, an expert's opinion must have a "grounding in the methods and procedures of science" and amount to more than "subjective belief or unsupported speculation." Daubert, 509 U.S. at 589-90. Additionally, under Rule 703, the facts and data relied upon by the expert must be of the type "reasonably relied upon by experts in that particular field." FED.R.EV. 703.
The branch of science relevant to Dr. Schwartz's proffered testimony that PCBs caused plaintiffs' illnesses is toxicology, the science of poisons. Courts have held that even if an expert seeking to testify is not a toxicologist, he must employ principles and methods of toxicology if he is to give an opinion on an issue relating to that specialty. Cavallo v. Star Enter., 892 F. Supp. 756, 771 (E.D.Va.), aff'd in relevant part, 100 F.3d 1150, 1159 (5th Cir. 1996) (though Daubert liberalized rules controlling expert admissibility, the factors it established still require that the methodology and reasoning used by a witness have a significant place in the discourse of experts in the field). A central tenet of toxicology is that the "dose makes the poison" and that all chemical agents, including water, are harmful if consumed in large quantities. See Federal Judicial Center: Reference Manual on Scientific Evidence, "Reference Guide on Toxicology", p. 185 (1994) (hereafter "Reference Manual"). The World Health Organization, the National Academy of Sciences and various United States Government agencies have adopted the following methodology for determining the possible effects of a toxin on individuals:
[(1)] First, an evaluation is made of the chemicals to which the individual might have been exposed, and of the concentrations of these chemicals in air breathed by the individual. [(2)] The second step involves and evaluation, based on the published scientific literature, of the exposures necessary to produce the adverse effects associated with the chemicals to which individuals may be exposed. [(3)] These two evaluations are then combined in the final step of the risk assessment to provide an estimate of the likelihood that any of the harmful properties of any or all of the chemicals might have been expressed in the exposed individual.
Cavallo, 892 F. Supp. at 764.
Numerous courts have followed this method. It requires first that the expert determine the dosage of the toxin at issue to which the plaintiff was exposed. Chikovsky v. Ortho. Pharm. Co., 832 F. Supp. 341, 345 (S.D. Fla. 1993). Second, the expert must establish "general causation," by demonstrating that, according to scientific literature, levels of the toxin comparable to those received by the plaintiff can cause the specific types of injuries he alleges. See Wade-Greaux, 874 F. Supp. at 1475; Wright v. Willamette Indus., 91 F.3d 1105, 1107 (8th Cir. 1996). The correlation between dosage and the response it engenders in a living organism is called the "dose-response" relationship. Reference Manual, p. 214. Third, the expert must establish specific causation, by demonstrating that, more likely than not, the toxin caused the plaintiff's injuries in this particular case. Wade-Greaux, 874 F. Supp. at 1475 (citations omitted); In Re Agent Orange Product Liability Lit., 611 F. Supp. 1223, 1250 (E.D.N.Y. 1985), aff'd, 818 F.2d 187 (2d Cir. 1987), cert. denied sub nom, Lombardi v. Dow Chemical, 487 U.S. 1234, 101 L. Ed. 2d 932, 108 S. Ct. 2898 (1988)); Allen v. Pa. Eng. Corp., 102 F.3d 194, 199, (citing Wright, 91 F.3d at 1107). Critical to establishing specific causation is exclusion of other possible causes of the symptoms. In Re Agent Orange, 611 F. Supp. at 1250. This method of considering all of the relevant potential causes of a plaintiff's symptoms and eliminating alternative causes based upon physical examination, clinical tests, and a thorough case history is called a "differential diagnosis." Reference Manual, p. 214.
In opposition to ConEd's contention that Dr. Schwartz was obligated to use the above methodology, plaintiffs advance various arguments. First, they discuss at length their conviction that the Echo Bay Substation was highly contaminated, and that ConEd has a poor record of honesty and compliance with government regulations and requests regarding environmental issues. However, the issue of whether Dr. Schwartz is qualified to testify does not depend on the actual level of contamination of Echo Bay or on ConEd's record of honesty and compliance. As discussed above, it depends on his qualifications, the method he employed to reach his conclusions and whether he has supported his conclusions with reference to scientific literature.
Next, plaintiffs argue that Dr. Schwartz need not follow the toxicological methodology in his diagnosis of the Mancusos because he "has testified that a specific 'dose-response' relationship is not relevant to the evaluation of a chronic toxic exposure occurring over a long period of time." (Schwartz Aff. P 5.) The only support plaintiffs offer for this statement, however, is their assertion that the cases employing a dose-response analysis are distinguishable. They try first to distinguish Daubert, 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786, and two other cases
because they involve "products liability claims concerning the prescription drug Bendectin." Second, they attempt to distinguish cases, such as O'Conner v. Commonwealth Edison Co., 807 F. Supp. 1376 (C.D. Ill.), aff'd, 13 F.3d 1090 (7th Cir.), cert. denied, 512 U.S. 1222, 129 L. Ed. 2d 838, 114 S. Ct. 2711 (1994), and Cavallo, 892 F. Supp. 756, because they involve "single acute, or very short term toxic exposure to chemicals not generally accepted in the scientific community as causing the toxic syndromes suffered." We are not persuaded by these attempted distinctions, however.
It is beyond cavil that Daubert and its progeny control the analysis of the admissibility of expert scientific testimony, regardless of the precise area of science or particular chemical at issue. Regarding the importance of Daubert, see, e.g., David M. Levy, Scientific Evidence after Daubert, LITIG., Fall 1995, at 48. While it is true that many of the cases construing Daubert focus mainly upon an analysis of whether the scientific community accepts that the chemical at issue causes the ailments complained of by the plaintiffs, an issue that we decline to reach, the critical holding in Daubert was that the Federal Rules of Evidence apply to questions of the admissibility of expert testimony. This holding gives the case a tremendous sweep, making it relevant to almost every question of expert analysis.
Plaintiffs next attempt to evade a dose-response analysis by asserting that PCBs "are generally accepted in the scientific community, as well by as Con Edison, as causing the illnesses and syndromes diagnosed in the Mancuso family," and that therefore they need not provide rigorous evidence of causation. However, they have established neither the factual premise nor the conclusion of their syllogism.
We are not persuaded at this point that the scientific community "generally accepts" that PCBs cause all of the ailments plaintiffs allege in this action. The sole support advanced for this assertion is the opinion of Dr. Schwartz, whose expertise in the field is minimal. In his reports, Dr. Schwartz does not quote from or even discuss scientific studies or textbooks, but merely provides a list of the literature on which he claims to have relied. Nor, with the exception of an article on intellectual impairment, does he provide any copies of this literature to this Court. Such an offer of proof is unacceptable. See O'Conner, 807 F. Supp. at 1392 (citations omitted) ("The mere recitation of a list of studies is not a magical incantation paving the way to the witness stand unless it is accompanied by reasoned and scientifically accepted analysis.")
By contrast, ConEd's experts, who are far better qualified in this area than Dr. Schwartz,
maintain that in fact, several of the Mancusos' illnesses such as baldness, bronchospasm and sensitization syndrome are not generally accepted as being caused by PCBs. (See Def. Br. at 45, 48; Exh. AA, OO, BB.) In addition, they argue that reference to established medical texts shows that plaintiffs' medical histories are inconsistent with syndromes that are known to be caused by PCBs. For example, Dr. Cohen concluded that plaintiffs did not have chloracne because the records showed that Dr. Klar treated all of them with topical steroids and, as a result, their infections either cleared up entirely, or substantially improved. (9/23/93 Ltr. from Klar to Tartaglia, Exh. B.) According to Dr. Cohen, acnes such as chloracne, a hallmark indication of PCB exposure, are known to respond adversely to corticosteroids. (Exh. BB at 1, (citing Plewig's Acne and Rosacea).) As further support for his conclusion, he noted that Mr. Mancuso testified that his pimples "itched," (F. Mancuso Trans. at 187, 201, 1475-76), as did Mrs. Mancuso, (E. Mancuso Trans. at 48), and that patients suffering from chloracne do not complain of itching, (id., (also citing Fitzpatrick's Dermatology in General Medicine Fourth Edition)). Thus, although we decline to rule on whether the literature supports all of plaintiffs ailments at this time, we do note that based upon the record before this Court, plaintiffs certainly have not established that it is generally accepted that PCB exposure could have caused their symptoms.
Nor do we accept plaintiffs' argument that ConEd's documents admit that "minute exposure can be extremely hazardous," and that therefore Dr. Schwartz did not need to know more than that plaintiffs were exposed to minute levels of PCBs before making his diagnoses. Plaintiffs apparently base this argument upon ConEd's Echo Avenue Substation HASP ("Health and Safety Plan"), the Order on Consent entered into with NYSDEC, a ConEd "Field Guide for the Cleanup of Dielectric Fluid Spills and fires Containing PCBs," and a ConEd memorandum entitled "Comprehensive Emergency Response Plan for Hazardous Materials Incidents." (See Pl. Br. at 11, (citing Comb. Stmt. Parts III & IV).) These documents were written either as a guide for the cleanup of the substation in order to comply with NYSDEC or OSHA requirements, or to address hazardous materials spills.
They were designed to limit exposure to PCBs as much as possible, and they do recite deleterious health effects that can result from acute or chronic toxicity, including dermal exposure to PCBs. However, the only exposure limits provided are for airborne PCBs or for PCB liquids, i.e. liquids containing over 50 ppm PCBs. Plaintiffs have offered no measures of PCB concentrations in the air above their property.
Regardless of the deleterious health effects they recite, these ConEd documents cannot be accepted in lieu of statistically sound, scientific, medical studies linking exposure to toxins to particular illnesses in living creatures. Numerous authorities have cautioned that "generalizations made in personal injury litigation from regulatory positions" are "particularly problematic." Reference Manual, p. 205 (problematic due to great variability in the amount of evidence needed to support different regulations). As Judge Weinstein explained in the Agent Orange case:
The distinction between avoidance of risk through regulation and compensation for injuries after the fact is a fundamental one. In the former, risk assessments may lead to control of a toxic substance even though the probability of harm to any individual is small and the studies necessary to assess the risk are incomplete; society as a whole is willing to pay the price as a matter of policy. In the latter, a far higher probability (greater than 50%) is required since the law believes it unfair to require an individual to pay for another's tragedy unless it is shown that it is more likely than not that he caused it.