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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


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 2-4).

  Initial Exposure

  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 summary.

  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 ...

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