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Ellis v. Appleton Papers

February 14, 2006


The opinion of the court was delivered by: Norman A. Mordue, D.J.



Presently before the Court are two motions pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The first is a motion by both defendants (Dkt. No. 217) for an order precluding Kaye Kilburn, M.D., the expert witness retained by plaintiff Sharon L. Prezioso McLaughlin, from offering any expert testimony in support of McLaughlin's case. The second is a motion by both defendants (Dkt. No. 218) for an order precluding Jack D. Thrasher, Ph.D., the expert witness retained by plaintiffs James J. Ellis and Claudia B. Cinquanti, from offering any expert testimony in support of their claims. For the reasons set forth below, the Court grants both motions.


Amended Consolidated Complaint

In their amended consolidated complaint (Dkt. No. 60), filed on April 1, 1998, plaintiffs claim in general terms that between 1984 and 1993 they were employed by the Tompkins County Department of Social Services ("DSS"); that they worked in several office buildings including the building commonly known as "Biggs A Building"; that at all relevant times DSS purchased "carbonless copy paper" ("CCP") from defendants for use by DSS employees; that plaintiffs used CCP in a reasonably foreseeable manner for the purpose for which it was intended; and that plaintiffs were repeatedly exposed to CCP over a substantial length of time. Plaintiffs further claim: "The aforementioned CCP contained numerous chemicals and/or substances including, but not limited to, formaldehyde; toluene diisocyanate; alkyl biphenyl; alkylated napthelines; polyisocyanates; triisopropylbiphenols (TIPB's); and many other toxic and/or hazardous substances, which are poisonous, carcinogenic, deleterious, hazardous and otherwise harmful to human beings." Plaintiffs allege that defendants knew or should have known that CCP contained these harmful toxic substances. Plaintiffs further allege that as a direct and proximate result of their prolonged and repeated exposure to CCP, they sustained serious personal injuries.*fn1

Plaintiffs set forth causes of action sounding in negligence, breach of implied warranty, breach of express warranty of fitness for a particular use, and strict products liability. McLaughlin's expert, Dr. Kilburn -- generally Plaintiff McLaughlin retained as her expert witness Kaye H. Kilburn, M.D., Ralph Edgington Professor of Medicine, University of Southern California Keck School of Medicine and Director of Environmental Sciences Lab. On January 24, 1997, Dr. Kilburn subjected McLaughlin to a battery of tests and prepared an expert report stating that she had "impairments" which were "attributed to carbonless copy paper over years." On January 2, 2002, after further testing, he reported to her attorney a diagnosis of "chemical encephalopathy ... due to carbonless copy paper." At his deposition on November 4, 2004, he attributed McLaughlin's symptoms to chemical encephalopathy caused by formaldehyde released from the CCP she used during her employment at DSS from 1984 to 1993.

Ellis' and Cinquanti's expert, Dr. Thrasher -- generally Dr. Thrasher, the expert witness retained by plaintiffs Ellis and Cinquanti, proposes to testify that these two plaintiffs suffer from building-related illness as a consequence of their use of CCP while employed by DSS. Both worked at DSS from 1984 to 1993. Dr. Thrasher's report, dated January 8, 2002, characterized Ellis' and Cinquanti's complaints as building-related illness caused by exposure, during their employment at DSS, to indoor contaminants including CCP. He concluded that the CCP forms emitted formaldehyde sufficient to cause Ellis' and Cinquanti's alleged building-related illnesses.

These Motions

Defendants, who have engaged in discovery and deposed Drs. Thrasher and Kilburn, move to preclude them from offering expert testimony at trial or in any other proceeding in these cases. Defendants base their motions on Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). They contend that the proffered expert testimony does not reflect reliable, scientific knowledge derived by the scientific method. They further contend that the experts have not properly applied their scientific theories to the facts of the cases.


It is fundamental that only relevant evidence is admissible at trial. See Fed. R. Evid. 402.

"Relevant evidence" is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401.

Where expert testimony is offered, the trial court must ensure not only that the testimony is relevant, but also that it "rests on a reliable foundation." Amorgianos v. National R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (quoting Daubert, 509 U.S. at 597). In this regard, Rule 702 of the Federal Rules of Evidence provides:

If 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The Daubert court observed that the inquiry envisioned by Rule 702 is "a flexible one." 509 U.S. at 594. "Its overarching subject is the scientific validity -- and thus the evidentiary relevance and reliability -- of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." Id. at 594-95.

A district court is not required to admit opinion evidence that is connected to existing data "only by the ipse dixit of the expert." General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). "A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Id. As the court in Amorgianos stated, "when an expert opinion is based on data, a methodology, or studies that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony." 303 F.3d at 266.

With respect to the reliability of a general theory propounded by an expert, the Daubert court "has identified a number of factors bearing on reliability that district courts may consider, such as (1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) a technique's known or potential rate of error, and the existence and maintenance of standards controlling the technique's operation; and (4) whether a particular technique or theory has gained general acceptance in the relevant scientific community." Amorgianos, 303 F.3d at 266(citations and internal quotes omitted).


Dr. ...

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