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July 30, 1999


The opinion of the court was delivered by: William C. Conner, Senior District Judge.


This is an action under the Clean Water Act, 33 U.S.C. § 1365, and under New York State law for personal injuries allegedly suffered by plaintiffs as a result of the contamination of soil and water at their former marina in New Rochelle, New York by polychlorinated biphenyls (PCBs) from the adjacent property formerly operated by defendant Consolidated Edison Company (ConEd) as an electrical power substation. After over six years of fitful prosecution, the action is before the Court again on ConEd's motion: (1) to exclude the proffered testimony of plaintiffs' latest medical expert that the various physical and mental illnesses allegedly suffered by plaintiffs were caused by, or at least are consistent with, exposure to PCBs; and (2) to dismiss the action with prejudice because plaintiffs, after ample opportunity, repeated warnings and extensions of time, are still unable to find any qualified expert who can express a scientifically acceptable opinion that plaintiffs' claimed illnesses were caused by PCB exposure. For the reasons explained hereinafter, the motion is granted in both respects.


The Marina

Even before Mancuso purchased the marina, the water in Echo Bay was obviously contaminated heavily by oil spillage from an adjacent oil storage facility and pipeline terminal owned and operated by Shoreline Oil Company, Inc. ("Shoreline") and by runoff from a storm drain which extended from the nearby New England Thruway and which apparently had been tapped by other users so that, after every rain, not only large volumes of silt but also raw sewage with much floating debris were dumped into the Bay, giving it a filthy appearance and foul odor. As might be expected, this had a devastating effect on the business of the marina. However, according to Mancuso, it was not until after he had purchased the marina and operated it for some time that Kolasch told him that the marina was also contaminated by PCBs from the ConEd substation. The American Dream had become a nightmare.

As the business foundered, Mancuso struggled heroically to make the best of a bad deal. To reduce living expenses, he moved his family into the marina in the fall of 1988. They continued to live there for about four years in a metal building without kitchen or bathroom, cooking their meals on a hot plate, using a portable toilet that Mancuso emptied every second or third day and washing in a separate building fifty feet away that contained a shower provided for use by patrons of the marina (Exh. Q, pp. 1390-95).*fn* To keep the inlet from silting up to the point where it was impassable for boats, Mancuso regularly borrowed the boat of one of the patrons, who was given free dockage space in exchange, tied it up in the channel and ran the engines at high speed in an attempt to stir up the silt and sweep it out into the Bay. In addition to such self-help measures, he repeatedly took recourse to the courts for relief.

The Litigation

Mancuso brought an action against Kolasch in New York State Supreme Court for recision of the purchase agreement on the ground of fraud. He also defended, on the same ground, the mortgage foreclosure suit brought against him by Kolasch.

Mancuso also brought three separate actions for contamination of the premises: this action, filed in January 1993, against ConEd for damages for contamination by PCBs; another action in this Court brought in March 1993 against the New York Thruway Authority for contamination by runoff from the storm drain; and a third action brought in January 1995 in New York Supreme Court, Westchester County, against Shoreline for the oil contamination. In each of the three actions, Mancuso attributed the financial failure of the marina to the particular contamination allegedly caused by the defendant in that case.

In the present action, Mancuso initially sought damages both for the injury to the property and the resulting destruction of the business and for personal injury to all the members of his family. ConEd moved for partial summary judgment dismissing the state law claim for property damage on the ground that it was barred by the applicable 3-year statute of limitations, N YCiv.Prac.L. & R. § 214-c(2), and on December 12, 1994, Judge Vincent L. Broderick, to whom the case was then assigned, granted the motion. After Judge Broderick died and the action was reassigned to the present judge, Mancuso sought and obtained leave to file a belated motion for reconsideration. After extensive briefing, this Court on November 3, 1995 reaffirmed the dismissal of the state law claim as time-barred because Mancuso had learned of the claimed pollution of the property by PCBs in 1988, over four years before the action was filed. 905 F. Supp. 1251.

Judge Broderick had referred the action to Magistrate Judge Mark D. Fox for the supervision of discovery and Judge Fox initially set December 31, 1995 as the deadline for completion of discovery After several extensions of this time, the Court set a trial date of May 26, 1997. But that date had to be adjourned because shortly theretofore ConEd made a motion in limine under Daubert v. Merrell Dow Pharm., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to exclude the testimony of plaintiffs' designated expert witnesses, Dr. Howard Schwartz and Dr. Jeanne Dietrich. In a lengthy opinion dated July 2, 1997, reported at 967 F. Supp. 1437, this Court granted the motion as to Dr. Schwartz and denied it as to Dr. Dietrich. The Court excluded the testimony of Dr. Schwartz because he was not a toxicologist; had no training in environmental medicine or toxins; had no idea as to the level of PCB contamination of soil or water which would constitute a health hazard to persons exposed thereto — what is known as a "dose/response" relation; and no information as to the concentration of PCBs in the soil and water at Echo Bay marina. He did not take blood samples of the plaintiffs to ascertain even the presence, much less the level, of PCBs in their systems. He gave each of the plaintiffs a single, rather brief physical examination, relying entirely upon their medical histories and subjective complaints and what his visual inspection revealed, without objective tests of any kind. Shortly thereafter he rendered a written report in which he expressed the opinion that every one of their many and diverse symptoms of illness was caused by exposure to PCBs, a conclusion which was essentially ipse dixit, although ostensibly supported by citation of scientific literature not readily available to the Court, without attaching copies of the relevant portions of such publications or even quoting from them.

Moreover, these authorities were purportedly relied on as establishing nothing more than that PCBs can cause certain illnesses in humans — known in toxicology as "general causation." Dr. Schwartz had no reasonable basis for concluding that PCBs caused such illnesses in these particular plaintiffs — known as "specific causation" — because he did not rule out or apparently even consider the possibility that their illnesses could have resulted from other causes, and thus could not make the required "differential diagnosis." He thus totally ignored the methodology prescribed by both the World Health Organization (WHO) and the National Academy of Sciences (NAS) for determining whether a person has been adversely affected by a toxin. See Federal Judicial Center: Reference Manual on Scientific Evidence, "Reference Guide on Toxicology," at 185 ("Reference Manual").

Although the Court excluded the testimony of Dr. Schwartz, it declined to grant summary judgment in favor of ConEd at that time, stating

    We will allow plaintiffs a brief period to find a
  qualified expert and submit an adequate Rule
  26(a)(2)(B) report. However, our patience is not
  unlimited. In October of 1994, Magistrate Judge Fox
  warned plaintiffs that they had 20 days to provide
  expert reports "sufficient in accordance with the
  rule" and that "if they're not sufficient you're
  facing preclusion." . . . Unless plaintiffs submit
  within 45 days an expert's report complying with rule
  26(a)(2)(B), or show good cause why they need
  additional time to do so, their complaint will be
  dismissed with prejudice.
    Plaintiffs are cautioned that this report must be
  rendered by an expert who has knowledge and
  experience in the medical effects of PCB exposure and
  who follows accepted toxicological methods. If the
  Mancusos wish to avoid yet another, and final,
  exclusion by this Court, the report must discuss the
  literature that supports the expert's conclusions and
  include copies of the relevant portions of such

967 F. Supp. at 1457.

Although the Court did not exclude the proffered testimony of Dr. Dietrich that the Mancusos' younger daughter, Theresa, had a learning disability (which Dr. Schwartz attributed to PCB exposure), the Court added:

  There is a caveat, however. Dr. Dietrich will not be
  allowed to testify that PCBs caused the ailments she
  diagnoses in Theresa. Dr. Dietrich is not a medical
  doctor, much less an expert on the effects of
  exposure to PCBs. We decline at this point to reach
  the question of whether the literature shows that
  PCBs can cause learning disabilities, since we have
  excluded the testimony of plaintiffs' proffered
  expert on causation. If plaintiffs cannot produce a
  qualified expert to testify that PCBs cause learning
  disabilities, Dr. Dietrich's testimony will be
  excluded as irrelevant.

967 F. Supp. at 1456-57.

The Baturay Report

After seeking and obtaining an extension of the time for serving and filing the report of a medical expert on causation, plaintiffs on September 30, 1997 designated Dr. Nesrine Baturay, an Associate Professor in the Department of Pharmaceutical Sciences at St. John's University, as their medical expert. On November 20, 1997, Dr. Baturay issued a nine-page report stating her opinion and the basis therefor.

Dr. Baturay began her report by stating that she is "a Medical Doctor licensed to practice in the State of New York." However, as ConEd has pointed out, after completing medical school, Dr. Baturay did not perform an internship or residency and accordingly was never licensed to practice medicine and has never diagnosed, treated or given medical advice to patients. Moreover, she has no formal training or experience with respect to PCBs and their effects on persons exposed to them. Indeed, she testified that until she was contacted by plaintiffs' attorney, "I really did not know anything about [PCBs] and I thought it would be a nice thing to learn" (Exh. C, p. 298). Her knowledge of PCBs was derived from reviewing medical literature during the next three months.

She obtained the factual information on which her opinion was based from: (1) a visit to the Echo Bay marina; (2) the report of Technion, Inc. ("Technion") on its PCB assay of soil samples taken from four points in the marina area; (3) the reports of Dr. Jesse H. Bidanset and Dr. Ian Webber on the effects of PCB exposure on humans; (4) an interview and physical examination of each of the four members of Mancuso's family; and (5) laboratory tests which she conducted to ascertain (a) the effect on mouse and hamster cells of exposure to extracts of soil samples taken from the marina and (b) the condition of cells taken from the Mancuso family members.

Dr. Baturay's physical examination of the plaintiffs did not include having them disrobe so that she could examine any skin areas normally covered by clothing. Nor did she take any blood samples or conduct any other clinical tests or objective investigation, but based her opinion on only what was visually apparent plus plaintiffs' medical histories and subjective complaints. These complaints included:

    Frank Mancuso: toxic burns, rashes, productive
  pustules, headaches, fatigue, loss of eye sight, hair
  loss, skin eruptions, mental and emotional fear,
    Ellen Mancuso (wife): rashes, fatigue, painful
  joints, vomiting, bloody noses, irregular cycles,
  mental and emotional anxiety, fear, and other
  emotional damage
    Deanna Mancuso (daughter, born 1982): rashes,
  facial flare-ups and swelling, respiratory
  impairment, persistent sneezing, cold-like symptoms,
  productive pustules, embarrassment, fear, anxiety,
  psychological injury and distress
    Theresa (daughter, born 1990): fused teeth, rashes,
  jaundice at birth, learning disability/attention
  deficit disorder, inexplicable outbursts of
  frustration/rage (Exh. B, p. 6).

In her first set of laboratory tests, Dr. Baturay cultured cells taken from mouse embryos and hamsters, dosed some of them with extracts of sediment samples from the marina and observed the cell foci after a six-week incubation period. She found that the cells so dosed had an elevated number of "transformed" foci. She took samples of these, stained them to distinguish between different chromatids and examined and counted the altered chromosomes microscopically. From this analysis, she concluded that chromosomal transformations (sister chromatid exchanges or SCEs) had been induced in the cells by exposure to PCBs. In her second experiment, she took biopsy specimens from each of the plaintiffs, cultured them and subjected them to similar chromosomal analysis. From this she concluded that the cells of each of the plaintiffs exhibited chromosomal transformations similar to those exhibited by the mouse and hamster cells exposed to extracts of sediment samples from the marina.

On the basis of this analysis, she expressed the opinion that "The Mancuso's medical complaints and symptoms, more fully described [above], were caused by exposure to toxic doses of PCB's and dioxins" (Exh. B, p. 3, ¶ B). More specifically she added: "In my opinion the skin rashes suffered by each of the family members can only reasonably be associated with toxic exposure to PCB's" (Id., p. 7, ¶ 10). With reference to Theresa, "her neurological condition, as diagnosed by Dr. Dietrich and Dr. Roseman, is consistent with current scientific and medical literature associating this type of damage with toxic exposure to PCB's." (Id., p. 7, ¶ 11.) She thus concluded that "[t]he laboratory tests demonstrate that the Mancuso's cells have been permanently damaged by toxic exposure to PCB's in a way that is transferred to daughter cells which divide in response to injury. Therefore the Mancusos . . . have a rational fear and anxiety [about cancer] as a result of this toxic exposure." (Id., pp. 8-9, ¶ 12.)

ConEd opposes the Court's acceptance of Dr. Baturay's report because there was no effort to comply with the Court's directions that the report "must be rendered by an expert who has knowledge and experience in the medical effects of PCB exposure and who follows accepted toxicological methods . . . [and] . . . must discuss the literature that supports the expert's conclusions and include copies of the relevant portions of such literature." 967 F. Supp. at 1457. ConEd contends that Dr. Baturay had no prior experience in this field, and no knowledge other than that which she gained in a brief review of the literature; that her report revealed a gross misunderstanding of several critical matters including the average concentration of PCBs in the blood of the general population and the dosage of PCBs which will produce a toxic response; that she did not determine or know the level of PCBs in the blood of any of the plaintiffs; that she did not follow an accepted toxicological method such as that prescribed by WHO and NAS, and recommended in the Reference Manual; that she made no significant effort to rule out other potential causes of plaintiffs' symptoms; and that, although she attached as Exhibit Three to her report an 11-page list of 180 "Medical and Scientific References," she did not refer to even a single one of them in her report, much less quote from them and attach copies of the relevant portions, as directed by the Court's Opinion and Order of July 2, 1997. On January 8, 1998, Dr. Baturay submitted a 13-page Supplemental Report in which she listed 150 other medical and scientific publications which she claimed supported her methodology, but again without specifically referring to any of them in her report, or quoting from any of them, much less attaching copies of the relevant portions.

After extensive depositions of the experts, on April 29, 1999 ConEd filed the present motion to preclude the testimony of Dr. Baturay and for summary judgment, filing in support thereof, inter alia, reports of its own experts, Dr. Raymond Harbison and Dr. David E. Cohen, challenging Dr. Baturay's methodology and conclusions in virtually every respect. The final briefs on the motion were filed June 8, 1999. Because, after many adjournments, the action is set for trial on September 27, 1999, the Court has given expedited consideration to the motion.


Applicable Legal Principles

Until the Supreme Court's decision in Daubert, the admissibility of expert testimony had traditionally been determined by the rule of Frye v. United States, 293 F. 1013 (D.C.Cir. 1923), requiring that an expert's opinion be based on a scientific principle which has "gained general acceptance in the particular field in which it belongs." Id. at 1014. In Daubert, the Court ruled that the Frye test ...

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