United States District Court, S.D. New York
September 6, 2005.
THOMAS J. GREEN, Plaintiff,
McALLISTER BROTHERS, INC., et ano, Defendants. McALLISTER BROTHERS TOWING, INC., sued herein as McALLISTER BROTHERS, INC., Third-Party Plaintiff, v. THE CITY OF NEW YORK, Third-Party Defendant.
The opinion of the court was delivered by: FRANK MAAS, Magistrate Judge
MEMORANDUM DECISION AND ORDER
Plaintiff Thomas J. Green ("Green") brings this action to
recover damages for injuries allegedly sustained as a result of
his exposure to World Trade Center dust ("WTC Dust") while
working in 2002 as a deckhand on the JOAN, a tugboat owned and
operated by McAllister Brothers Towing, Inc. ("McAllister"),
which was helping move barges containing World Trade Center
debris to the Fresh Kills landfill in Staten Island. McAllister, in turn, has brought a third-party claim against the
City of New York ("City") on the theory that the City directed
McAllister's (and therefore Green's) work on the tugboat.
In a Memorandum Decision and Order dated March 24, 2005, I
concluded that Green had adequately established the general
causation element of his toxic tort claim against McAllister, but
that a Daubert hearing was necessary to determine whether
Green's treating physician, Dr. Aboaba Afilaka, could adequately
establish the specific causation element of Green's claim. (See
Docket No. 46 at 28-32). In this Memorandum Decision and Order,
familiarity with my prior Decision and Order is assumed.
Dr. Afilaka was the sole witness at the Daubert hearing,
which was held on July 8, 2005. Dr. Afilaka gave testimony which,
in part, was either different than, or an extension of, his prior
testimony concerning Green's ailments. In brief, although Dr.
Afilaka testified at his deposition that Green's asthma was
allergen-induced, he testified during the hearing that
"[s]ubsequent information and knowledge concerning [WTC Dust] has
allowed us to understand . . . that there could also be irritant
induction coexisting with allergen induction." (See Hr'g Tr.
56; Afilaka Dep. 56). Dr. Afilaka further testified on
cross-examination that, even if Green first was exposed to WTC
Dust at Ground Zero in 2001 an allegation that Green has denied
his opinion would be that "whatever transpired on [the] tugboat
was an aggravation of [Green's] occupational asthma." (Hr'g Tr. 61).
The defendants contend that Dr. Afilaka should be precluded
from testifying about specific causation principally because (1)
he ignored information on Green's medical chart which shows that
Green was working at Ground Zero as early as September 11, 2001;
(2) he impermissibly departed from his prehearing statements by
offering a "new expert opinion, viz., that [Green's] tugboat
exposure caused an aggravation of his pre-existing asthmatic
condition;" and (3) his testimony does not meet the Daubert
"fit" test. (McAllister's Post Hr'g Mem. at 2-5; City Mem. In
Supp. of Mot. to Preclude Test. and for Summ. J. ("City Mem.") at
As Dr. Afilaka conceded on cross-examination, his initial
diagnosis of allergen-induced asthma caused by Green's exposure
to WTC Dust aboard the JOAN was based on the assumption that
Green had not previously been exposed to WTC Dust at Ground Zero.
Although Dr. Afilaka's chart contains several references to such
an earlier exposure, (see Hr'g Tr. 12, 25-28, 30-33), Green has
adamantly maintained that he was not in the vicinity of Ground
Zero between September 11, 2001, and the date in late March 2002
that he began working for McAllister. (See, e.g., Green Dep.
70, 116, 135-36). If a jury accepts Green's testimony that he had
no prior exposure to WTC Dust, Dr. Afilaka's expert opinion would
permit the jury to find that Green's asthma was caused by his work for McAllister.*fn1 Additionally, to the extent
that Dr. Afilaka now believes that irritant induction is one of
the mechanisms that caused Green's asthma, it appears that his
opinion was formed during the course of his continuing treatment
of Green and therefore admissible, notwithstanding his failure to
incorporate it into his deposition testimony or prior written
Other Allegedly New Opinions
In an effort to suggest that Dr. Afilaka may not offer a new
opinion "now that litigation is underway," McAllister cites
Lewis v. Triborough Bridge and Tunnel Auth., No. 97 Civ. 607
(PKL), 2001 WL 21256, at *1 (S.D.N.Y. Jan. 9, 2001). (See
McAllister Post Hr'g Mem. at 4). In that case, Judge Leisure held
that a plaintiff's "treating physician may testify about
conclusions reached during the course of treatment without regard to the disclosure requirements of Rule 26(a)(2)"
of the Federal Rules of Civil Procedure. Lewis, 2001 WL 21256,
at *1. "However, with regard to opinions based on information not
learned during the course of treatment, a physician must comply
with the rules regarding expert disclosure." Id. As Dr. Afilaka
explained at the hearing, following his August 2003 deposition,
he has continued to treat Green. (See Hr'g Tr. 4). Moreover,
while he originally diagnosed Green as having allergy-induced
asthma, he testified at the hearing that the "body of knowledge"
has since improved, such that he now believes the actual
mechanisms causing Green's asthma are irritant and allergy
induction. (Id. at 56-57). Although Dr. Afilaka concedes that
he had not previously testified that Green's asthma is, at least
in part, irritant induced, it appears that he formed this opinion
during the course of his continuing treatment of Green. For this
reason, it is admissible.
Dr. Afilaka also testified, in response to a hypothetical posed
by McAllister's counsel, that if Green had been exposed to WTC
Dust in September 2001 and Dr. Afilaka had diagnosed him as
suffering from occupational asthma in December 2001, he would
have concluded, if consulted by Green in August 2002 (as he was),
that Green's reaction to his work on the tugboat was "an
aggravation of the occupational asthma" and that the tugboat
therefore would be the "primary source of the major contamin[ant]
and exposure" of Green. (Id. at 60-61). This testimony, which
was based on a scenario directly contradictory to Dr. Afilaka's
own understanding of the facts, obviously had nothing to do with
any opinions that Dr. Afilaka actually formed in the course of treating Green. Additionally, Dr. Afilaka never
prepared an expert report disclosing such an opinion. For these
reasons, Green will not be permitted to present any aggravation
of a preexisting condition theory of liability to the jury during
the course of Dr. Afilaka's direct testimony.
Daubert "Fit" Test
The City further maintains that Dr. Afilaka's testimony
regarding specific causation fails to meet the Daubert "fit"
test. Both Daubert and Rule 702 of the Federal Rules of
Evidence require that a testifying expert apply his knowledge
reliably to the facts of the case. See Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 580 (1993); Fed.R.Evid. 702. The
City alleges that Dr. Afilaka's testimony fails to meet this
requirement because his understanding of Green's exposure to WTC
Dust while in McAllister's employ is "at odds with" other
uncontradicted evidence in this case and the results of a
methacholine challenge test taken by Green in January 2004. (City
Mem. at 3-4, 14-17).
As noted in my earlier decision, Dr. Afilaka based his opinion
that Green has allergy-induced asthma in large part on "the
reversibility of Green's symptoms when he left the JOAN for a
period of time, and his heightened response when he returned to
an environment which exposed him to `tangible concentrations' of
WTC Dust." Green v. McAllister Bros., Inc., 02 Civ. 7588 (FM),
2005 WL 724624, at *13 (S.D.N.Y. Mar. 25, 2005). Dr. Afilaka's
understanding was that after Green was initially exposed to WTC
Dust aboard the JOAN, he was sent to work at a military base for
several weeks, and then had some respiratory distress on his
first day back on the JOAN, which led to his hospitalization at Coney Island Hospital. (Afilaka Dep. 50-51).
It is undisputed that Green returned to the JOAN from the
military base on July 16, 2002, and worked on that vessel for two
additional days. (See McAllister Hr'g Mem. Ex. A). It further
appears undisputed that Green's hospitalization was from July 21
through 25, 2002. (See Green Dep. 78-80). The City contends
that Dr. Afilaka's testimony therefore is based on an inaccurate
understanding of the undisputed facts because the "official end
of the WTC clean-up" was July 15, 2002, and Green testified that
he was transporting empty barges from Fresh Kills when he
returned to the JOAN in mid-July. (City Mem. at 15) (citing Green
Dep. 46 and Mark Santora, "As a Grim Job Ends, Dust Returns to
Dust," New York Times, Section B (July 16, 2002)). In the City's
view, Green therefore could not have had a reaction to WTC Dust
when he returned to the JOAN.
There are at least two problems with the City's theory. First,
there has been no showing that the empty barges and the JOAN
itself were entirely free of WTC Dust only a few days after the
operation at Fresh Kills "officially" ended. Second, Dr. Afilaka
may simply have been mistaken as to the dates involved. As Green
explained in his deposition, he also had a reaction approximately
two weeks after he began working for McAllister, when he returned
to work after having been off the vessel for five days. (Green
Dep. 77, 82-83). If Green's recollection as to these facts is
accurate, this would have been during the period that the JOAN
was moving barges laden with WTC debris to Fresh Kills.
The results of the January 2004 methacholine challenge test
also do not have been during the period that the JOAN was moving barges laden
with WTC debris to Fresh Kills.
The results of the January 2004 methacholine challenge test
also do not entitle the defendants to preclude Dr. Afilaka's
testimony. Although the results of the test were "normal,"
shortly before the hearing Dr. Afilaka sent Green for another
pre- and post-bronchodilator test, which indicated that Green
still had asthma. (See Hr'g Tr. 52, 76-77). Dr. Afilaka has
acknowledged that a methacholine test constitutes the "gold
standard" for determining whether a patient has a hyperactive
airway, but the Court cannot assume, as the City and its expert
allege, that a methacholine test necessarily trumps a
contradictory bronchodilator test. That consequently is a factual
issue that the jury will have to resolve after it hears from both
sides' experts in this case.
Subject to the limitation noted above, Green's medical expert,
Dr. Aboaba Afilaka, will be permitted to testify at trial. In
light of this ruling, the Court will hold a further telephone
conference on September 15, 2005, at 3:00 p.m., which shall be
initiated by Green's counsel.
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