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ARNOLD v. DOW CHEMICAL CO.

January 15, 1999

PATRICIA ARNOLD, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF KENNETH ARNOLD, DECEASED, PLAINTIFF,
v.
DOW CHEMICAL COMPANY, DEFENDANT.



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 hematologist.

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.

I. BACKGROUND

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.

II. DISCUSSION

A. Daubert

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 Evidence.

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 ...


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