The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
Patricia Arnold (the "plaintiff"), alleges that her former
husband, Kenneth Arnold ("Arnold") was exposed to high levels of
trichlorethethylene ("TCE") during his employment at the Grumman
Aerospace Plant in Bethpage, New York, and that this exposure
substantially contributed to his development of multiple myeloma,
which eventually caused his death on July 16, 1995. In support of
these allegations, the plaintiff has proffered the testimony of
four persons as expert witnesses: (1) Dr. Michael Ellenbecker, an
industrial hygienist; (2) Dr. Richard Clapp, an epidemiologist;
(3) Dr. David Ozonoff, a toxicologist; and (4) Dr. Brian Durie, a
All four of the proffered experts have been deposed by Dow
Chemical Company (the "defendant" or "Dow") and discovery has
been completed. The case is ready for trial. Presently before the
Court is the motion by Dow, pursuant to Federal Rules of Evidence
104(a) and 702, seeking an Order excluding the testimony of the
plaintiff's proffered experts.
In addition, the Court will address the plaintiff's "appeal"
from and objection to the December 19, 1997 discovery Order of
the United States Magistrate's Judge Michael L. Orenstein,
requiring the plaintiff to pay the cost of their experts
depositions, although requested by Dow.
Unless otherwise stated, the facts underlying the plaintiff's
claims are undisputed. Arnold worked for Grumman Aerospace Plant
("Grumman") in Bethpage, New York from approximately 1963 to 1970
and again from 1972 until 1991. From approximately 1976 until
1991, Arnold worked in Plant 12 at Grumman's Bethpage facility.
One of his primary duties was using solvents to clean and
degrease the equipment. On April 18, 1991, Arnold first became
sick after a minor accident at work in which he bumped his shin
on a metal stairway. Shortly thereafter, Arnold was hospitalized
due to a resulting infection, and was diagnosed with pyoderma
gangrenosum. Arnold's treating physician, Dr. Mae Hultin later
diagnosed his condition as multiple myeloma. As a result of this
diagnosis, Arnold filed a claim with the New York State Worker's
Compensation Board against Grumman in which he sought Worker's
Compensation benefits. As part of that proceeding, Arnold was
deposed on October 18, 1994.
This action was commenced on July 28, 1994 in the Supreme Court
of the State of New York, Suffolk County, and was removed to this
Court on the basis of diversity jurisdiction in August 1994. In
early 1995, the Court and Dow were advised that Arnold was "in
extremis" and requested that his deposition be taken immediately.
Arnold was deposed on May 4, 1995 and May 18, 1995. His
deposition was then delayed for medical reasons, but was
continued on July 6, 1995. On July 16, 1995, at age 53, Arnold
died from complications of multiple myeloma. On February 13, 1996
an amended complaint was filed naming Patricia Arnold
individually and as Executrix of the estate of her deceased
husband, Kenneth Arnold.
As stated above, the plaintiff alleges that Arnold was exposed
to high levels of TCE during his employment at Grumman and that
this exposure substantially contributed to his development of
multiple myeloma, and eventually to his death. In support of this
theory, the plaintiff has offered the testimony of the four
witnesses who they deem to be experts. As a significant part of
the plaintiff's case, the combined testimony of her experts
concludes that Arnold was repeatedly and over many years exposed
to elevated levels of TCE vapors while working at Grumman; that
TCE can be a substantial factor in causing multiple myeloma in
exposed individuals such as Arnold; and that TCE was a
substantial factor in causing the multiple myeloma and the
eventual death of Arnold.
The grounds for Dow's motion to exclude the testimony of all
four experts, pursuant to Rules 104(a) and 702 of the Federal
Rules of Evidence, is that the proffered expert testimony is not
based upon scientific knowledge. Specifically, Dow asserts that:
the opinions of the experts designated by the
plaintiffs as to (1) general causation, (2) specific
causation, and (3) exposure to allegedly dangerous
levels of TCE solvent are neither reliable nor
relevant with respect to the claims asserted by the
plaintiffs in this action. As disclosed by these
proffered expert witnesses in their reports and the
depositions taken in this case, those opinions are
not grounded in the methods and procedures of
science, and are based upon unfounded assumptions and
extrapolations of studies and data that
are irrelevant to the issues that plaintiffs must
prove in this action.
The qualifications, substance, and methodology of the four
proffered expert witnesses will be discussed in detail below.
Prior to the Supreme Court's interpretation of Rule 702 of the
Federal Rules of Evidence in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d
469 (1993) ("Daubert") the test to determine if scientific
evidence was admissible at trial was whether the evidence was
"generally accepted" as reliable within the relevant scientific
community. See Frye v. United States, 293 F. 1013 (1923).
Daubert, however, held that the Frye test, as it had become
known, was superseded by the adoption of the Federal Rules of
Rule 702, entitled "Testimony by Experts," states that:
[i]f 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.
Examining Rule 702, the Supreme Court in Daubert provided a
flexible analysis to guide trial courts in determining whether
proffered submissions of scientific evidence are admissible. The
Supreme Court emphasized the "flexibility" that should guide the
trial court when making a determination of the admissibility of
scientific evidence and stressed that "[v]igorous
cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence."
Daubert, 509 U.S. at 595, 113 S.Ct. 2786 (citation omitted).
When faced with an offer of expert scientific testimony, the
Supreme Court in Daubert stated that
the trial judge must determine at the outset,
pursuant to Rule 104(a) whether the expert is
proposing to testify to (1) scientific knowledge that
(2) will assist the trier of fact to understand or
determine a fact in issue. This entails a preliminary
assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid and
of whether that reasoning or methodology properly can
be applied to the facts in issue.
Id. at 592-593, 113 S.Ct. 2786 (citations omitted). The Supreme
Court provided a list of factors for a trial court to consider
when making this determination, but stressed that "we do not
presume to set out a ...