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MANCUSO v. CONSOLIDATED EDISON CO. OF NEW YORK

July 2, 1997

FRANK MANCUSO, ELLEN MANCUSO, individually and on behalf of their children, DEANNA and THERESA MANCUSO and F. MANCUSO BOAT YARD, INC. d/b/a ECHO BAY MARINE, Plaintiffs, against CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant.


The opinion of the court was delivered by: CONNER

 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.

 BACKGROUND

 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). *fn1"

 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.

 DISCUSSION

 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. *fn4" 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. *fn5" (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. *fn6" (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), *fn7" 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 ...


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