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Burton v. American Cyanamid

United States District Court, E.D. Wisconsin

January 25, 2019

GLENN BURTON, JR., Plaintiff,
AMERICAN CYANAMID et al., Defendants; RAVON OWENS, Plaintiff,
AMERICAN CYANAMID et al., Defendants; CESAR SIFUENTES, Plaintiff,
AMERICAN CYANAMID et al., Defendants.



         In each of the three above-captioned cases, the plaintiff claims that he was injured when, as a young child, he ingested paint that contained white lead carbonate (WLC). Each plaintiff proceeds against the same five defendants: American Cyanamid Co. (“Cyanamid”), Armstrong Containers, Inc. (“Armstrong”), E.I. DuPont de Nemours and Company (“DuPont”), Atlantic Richfield Company (“Atlantic Richfield”), and Sherwin-Williams Co. (“Sherwin-Williams”). The cases have been consolidated for trial. This decision and order will address several motions to exclude from trial the opinions and testimony of various expert witnesses. I have rehearsed the legal theories and facts underlying these cases at length in several prior orders and will not reproduce them here.


         Generally, relevant evidence is admissible at trial. Fed.R.Evid. 402. Rule 401 provides that “[e]vidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401. Rule 403 further provides that I may exclude relevant evidence “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403.

         The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir.2007). Rule 702 provides that:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

         The inquiry consists of three general areas: (1) the testimony must be “helpful, ” which dovetails with the relevance requirements of Fed.R.Evid. 401-403; (2) the expert must be qualified by knowledge, skill, experience, training, or education; and (3) the testimony must be reliable and fit the facts of the case. Lyman v. St. Jude Medical S.C., Inc., 580 F.Supp.2d 719, 722 (E.D.Wis.2008).

         Under the third part of the analysis, I examine whether (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. Fed.R.Evid. 702. I am to act “as a ‘gatekeeper' for expert testimony, only admitting such testimony after receiving satisfactory evidence of its reliability.” Dhillon v. Crown Controls Corp., 269 F.3d 865, 869 (7th Cir.2001). It is not my role to determine whether an expert's opinion is correct; I consider only “whether expert testimony is pertinent to an issue in the case and whether the methodology underlying that testimony is sound.” Schultz v. Akzo Noble Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013), citing Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000).

         The proponent of the expert bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 805 (7th Cir. 2009); Fed.R.Evid. 702 advisory committee's note (2000 Amends.) (“[T]he admissibility of all expert testimony is governed by the principles of Rule 104(a). Under that Rule, the proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence.”).


         Many of the expert opinions now at issue address causation. Plaintiffs bring their claims under the negligence and strict products liability frameworks articulated by the Wisconsin Supreme Court in Thomas ex rel, Gramling v. Mallet, 2005 WI 129. The negligence framework requires each plaintiff to show that he ingested white lead carbonate, and that the white lead carbonate caused his injuries. Id., ¶ 161. The strict liability framework requires each plaintiff to show that a defect in the white lead carbonate was a cause of his injuries. Id., ¶ 162. Under Wisconsin law, negligence or defect “caused” an injury if it was a substantial factor in producing the injury. WIS JI-CIVIL 1500 Cause; Schultz, 721 F.3d at 433. As is true in many toxic tort cases, the injuries claimed by plaintiffs here are possibly-indeed likely-the product of several combined causal factors. However, to show that WLC was a “cause” or “substantial factor, ” plaintiffs here are not required to demonstrate that lead exposure was a sole cause of each of their injuries, so long as each shows that the WLC contributed substantially to the development of his injuries or increased his risk of such injuries. See Schultz, 721 F.3d at 433.

         A “differential etiology” is one accepted and valid method by which experts may render an opinion about the cause of a patient's injury. Myers v. Illinois Central R. Co., 629 F.3d 639, 644 (7th Cir. 2010).

[I]n a differential etiology, the doctor rules in all the potential causes of a patient's ailment and then by systematically ruling out causes that would not apply to the patient, the physician arrives at what is the likely cause of the ailment. . .. The question of whether [a differential etiology] is reliable under Daubert is made on a case-by-case basis focused on which potential causes should be “ruled in” and which should be “ruled out.”

Id. (internal citations omitted). In assessing whether an expert employed a reliable method, I have discretion to consider “whether the expert has adequately accounted for obvious alternative explanations.” Fed.R.Evid. 702 (2000) Committee Note. In some cases, this analysis may require me to consider whether the expert has adequately “show[n] why a particular alternative explanation is not, in the expert's view, the sole cause of the [injury].” Schultz, 721 F.3d at 434 (citing Haller v. Shaw Indus., Inc., 167 F.3d 146, 156 (3d. Cir. 1999)). This makes sense in cases where it is obvious that an alternative factor may have been solely responsible for the injury, such that the causal factor alleged by the plaintiff could have played no role. Similarly, in cases where obvious alternative causes may have contributed to an injury, even though they may not entirely exclude the causal factor favored by the plaintiff, an expert may be excluded as unreliable if he entirely fails to consider or investigate those alternatives. See Myers, 629 F.3d at 645; Brown v. Burlington Northern Santa Fe Ry. Co., 765 F.3d 765, 773-774 (7th Cir. 2014).

         But not all cases entail such stark alternative causal factors. It is the more general rule while a reliable expert must consider reasonable alternative causes of an injury, an expert need not rule out every alternative cause of an injury. Id.; Cf. Grayton v. McCoy, 593 F.3d 610, 619 (7th Cir. 2010) (District court that excluded expert on grounds that he did not posit possible alternative causes of plaintiff's injuries “fail[ed] to account for the inefficiencies of requiring an expert to list each and every possible cause of a given outcome.”). “An expert need not testify with complete certainty about the cause of an injury, rather he may testify that one factor could have been a contributing factor to a given outcome.” Gayton, 593 F.3d at 619. The possibility (and the degree to which) other factors may have contributed to plaintiffs' injury is a subject quite susceptible to exploration on cross-examination by opposing counsel. Id.; see also Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1021 (7th Cir. 2000). Thus, in cases that entail many likely-overlapping causal factors, I assess the reliability of an expert's differential etiology by ascertaining that the expert adequately identified the range of potential causes, and that he adequately investigated and considered each of these causes in reaching his conclusions. See Schultz, 721 F.3d at 433. Such an approach is entirely consistent with Wisconsin tort law's “substantial factor” causation standard. Id.

         Finally, the standard for reliability may be somewhat different when one party's expert seeks to challenge the opposing party's expert's differential etiology. “In attacking the differential diagnosis performed by the plaintiff's expert, the defendant may point to a plausible cause of the plaintiff's illness other than the defendant's actions. It then becomes necessary for the plaintiff's expert to offer a good explanation as to why his or her conclusion remains reliable.” Kannankeril v. Terminix Intern., Inc., 128 F.3d 802, 808 (3d Cir. 1997); see also Westberry v. Gislaved Gummi A.B., 178 F.3d 257, 265-66 (4th Cir. 1999). Further, under Thomas, plaintiffs have the burden of proof on causation, while defendants can rebut plaintiffs' theory of causation by presenting alternative causes. 2005 WI 129, ¶ 156; see also id., ¶ 163 (“[T]he pigment manufacturers here may have ample grounds to attack and eviscerate [plaintiff's] prima facie case, with some of those grounds including that lead poisoning could stem from any number of substances (since lead itself is ubiquitous) and that it is difficult to know whether [plaintiff's] injuries stem from lead poisoning as they are not signature injuries.”). As the court in Daubert stated, “[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.” 509 U.S. at 595. Thus, in the present cases, a defendant's expert who opines that a factor other than WLC exposure may have caused part or all of a plaintiff's alleged injury will generally be admissible even if that expert did not expressly consider or exclude lead as a cause, provided that the expert used an otherwise reliable methodology to arrive at the opinion that the alternative factor may have been a cause.

         III. ANALYSIS [1]

         A. Idit Trope

         Idit Trope is a neuropsychologist retained by plaintiffs to offer diagnostic and causation opinions with respect to plaintiffs' neurocognitive injuries. Defendants have moved to exclude her causation opinions as unreliable because, according to the defendants, she did not perform a proper differential etiology. Defendants argue that she failed to rule out “obvious alternative explanations” such as genetics, other illnesses, and socioeconomic factors.”

         I disagree. As discussed in Section II, above, when I consider the validity of an experts differential etiology, I consider whether the expert “adequately accounted for” obvious alternative explanations. Such an “adequate accounting” may require the expert to affirmatively rule out the possibility that a certain, obvious alternative factor was the sole cause of an injury. But not all alternative factors require such treatment. Depending on the specific situation, it may be enough for the expert simply to consider alternative factors, without affirmatively excluding them. I find that, in her evaluation of the plaintiffs, Trope did identify and exclude those obvious alternative factors that required such treatment. Regarding Glenn Burton, Trope excluded his complicated birth history as sole cause of his neurocognitive challenges. No. 07-C-0303, ECF No. 603-1 at 54. The other alternative causes identified by the defendants, such as heredity and socioeconomic status, warrant consideration by the expert but not necessarily exclusion. Through her deposition and reports, Trope explains that she considers these factors as co-contributors to the plaintiffs' injuries, interacting with and perhaps exacerbating the effects of lead to yield each plaintiff's neurological outcome. This is the same approach by the expert whose differential etiology the Seventh Circuit found to be reliable in Schultz: he excluded tobacco as a sole cause of the plaintiff's cancer, while acknowledging that tobacco and many other factors likely interacted with benzene, the alleged toxic agent, to cause the plaintiffs cancer. 721 F.3d at 434. I will admit Trope's causation opinions.

         B. James Besunder

         James Besunder is a pediatric critical care doctor at Akron Children's Hospital, with significant professional experience treating patients with elevated lead levels. He opines that lead exposure is responsible for a ten-point drop in IQ in each of the three plaintiffs. He bases his opinion in epidemiological studies of the relationship between lead-exposure and IQ combined with a review of each plaintiff's medical history. Defendants seek to exclude his testimony in its entirety.

         Defendants first argue that he is not qualified to give this testimony because he is a treating physician and not professionally concerned with the etiology of his patients' conditions. I find, though, that his professional training and his experience treating and counseling patients with elevated lead levels are sufficient to qualify him to give this testimony.

         Defendants argue that Besunder's methodology is unreliable because he uses epidemiological studies, which explore disease patterns in large populations, to draw conclusions about individual plaintiffs. However, the method of applying epidemiological evidence to the medical records of individual patients is consistent with the practice of doctors and sufficient to withstand Daubert. Defendants object that the epidemiological statistics he relied on are not an adequate basis for etiological conclusions about an individual patient's condition. Further, the epidemiological research he relies on is nuanced about, e.g., the age of exposure and other contributing factors, allowing Besunder to make individualized analyses tailored to each child. Defendants concerns about the validity of the research Besunder draws on when used for this purpose may be addressed to the jury.

         Finally, defendants argue that Besunder's methods were unreliable because he failed to perform a valid differential etiology. However, differential etiology was not needed to support his opinion. His opinion, based on epidemiological evidence and the children's exposure histories, is that lead alone caused a ten point IQ drop, while other factors may have caused an additional IQ drop. This is as opposed to starting with an already-established diagnosis of a 10-point IQ drop and opining that lead is a substantial factor relative to other factors in causing that pre-identified outcome. Further, I note that Besunder did consider other factors and acknowledge the existence of several co-contributing factors to plaintiffs' overall IQ drops.

         I will admit Besunder's testimony.

         C. Peter Karofsky

         Peter Karofsky is a physician and former head of the Children/Teen clinic at the UW-Madison school of medicine. He was retained by defendants to review the plaintiffs' medical records and identify possible alternative causes of their cognitive and behavioral problems. For each of the three plaintiffs, he constructed a report that identifies many factors-medical, social, genetic, and psychological-that he opines may have contributed to plaintiffs' problems. Each report also includes an opinion that early childhood lead exposure played no discernible role in the plaintiff's neurocognitive injuries.

         Plaintiffs correctly point out that, throughout his deposition, when asked to justify his exclusion of lead as a potential cause of the plaintiffs' injuries, Karofsky relied heavily on ipse dixit. Karofsky's reports also failed to cite any published studies on early childhood lead exposure to justify his opinion that lead played no role in plaintiff's injuries. The basis for Karofsky's opinion that lead played no role in plaintiffs' injuries is, indeed shaky.

         Nevertheless, I will admit Karofsky's testimony for two reasons. First, as an expert for the defense, he may challenge plaintiffs' differential etiologies by identifying potential alternative causes of plaintiffs' injuries, so long as the method by which he identifies those alternative causes is reliable. See Section II, supra. Karofsky's reports indicate that he identified potential alternative causes by closely reading plaintiffs medical records and other evidence in the record and that he supported his claims with ample citations to scholarly research. This is a reliable method. Second, each report does include a brief section that provides a rationale for excluding or discounting lead as a possible cause and citing to plaintiffs' medical history. On balance, I will admit Karofsky's testimony to rebut plaintiffs' differential etiologies, and will trust in the adversary trial process to iron out the weaknesses in his testimony.

         D. William Banner

         William Banner is a physician retained by defendants to review plaintiffs' medical records and identify potential alternative causes for each plaintiffs' alleged cognitive deficits. Plaintiffs object that the factors he identifies as potential causes are supported by limited scientific studies that do not take lead exposure into consideration, and further that he fails to consider the body of literature that identifies lead as a cause of cognitive injury. As described in Section II above, Banner's testimony appropriately challenges the testimony of plaintiffs' causation experts by raising possible alternative causes. Plaintiffs' objection to the literature on which he does and does not rely goes to the weight of his testimony and is for the jury.

         Banner is also offered to testify that children in the 1960s and 1970s had high blood levels but did not have lower IQs, behavior problems, or other issues. Plaintiffs argue that this statement is unsupported ipse dixit, and I agree. Banner's support for the claim that the children of the 60s and 70s suffered no harm from lead is that, though lead levels have dropped in the population, we have not seen a correlating rise in national IQ. Banner offers no research-based ...

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