testimony in this case is that he claims that radiation induced
cataracts can be positively identified by just looking at them.
Dr. Scheribel's Evidence Deposition at 69. If that is medically
and scientifically true, and since we know that it takes
hundreds of rem to cause a radiation induced cataract, it
provides the basis for a reasonable inference that O'Conner
must have been exposed to radiation above the federal standards
in order to produce this cataract effect. Thus, Dr. Scheribel's
proposed testimony is key to the plaintiff's case on duty owed
as well as on causation. But defendants maintain that Dr.
Scheribel's statement is medically and scientifically untrue.
They point out that a valid logical conclusion cannot arise
from a false premise no matter how correct the logic used to
build upon the false premise.
Defendants assert this case is a classic example of "junk"
science, not only failing to assist the jury as expert opinion
testimony should under Rule 702, but actually misleading any
juror who would hear it. Consequently, defendants maintain that
Dr. Scheribel's proposed statement should not be admitted into
evidence. Relying upon cross-examination to expose the error is
not sufficient, defendants claim, because that mechanism relies
upon an unsophisticated lay person to arbitrate complex
scientific issues which they may not even comprehend. Thus, the
admissibility of Dr. Scheribel's testimony becomes the focal
point of the case. "The trial judge, of course, decides whether
particular evidence is competent." Spaeth, Proposed Amendments
to the Federal Rules on Admissibility of Scientific Evidence, A
Judge's Perspective, 115 F.R.D. 112, 113 (1987).
III. RESOLUTION OF THE EVIDENTIARY ISSUE IN THIS CASE
A. Dr. Scheribel's Expertise and Opinion
Dr. Scheribel is a board certified ophthalmologist
specializing in contact lenses. Dr. Scheribel's Evidence Dep.
at 12. In his curriculum vitae ("CV"), Dr. Scheribel describes
his work as "teaching of the fitting of hard and soft contact
lenses and the problems associated with the same, teaching of
external disease and attending physician at three general
ophthalmology clinics." Dr. Scheribel's CV, a copy of which is
attached as Exhibit A to his Evidence Deposition. He is not a
radiation physicist and has not studied or performed any
research in radiation physics or nuclear biology (Dr.
Scheribel's Evidence Dep. at 66), or reviewed any of the
relevant literature on radiation induced cataracts prior to
testifying at his evidence deposition taken on June 10, 1988.
Dr. Scheribel's Evidence Dep. at 63. He has not conducted any
studies of the medical effects of radiation exposure on the eye
(Dr. Scheribel's Evidence Dept. at 22), and has not written any
books, articles, scientific papers or treatises on the effects
of radiation on the eye. Dr. Scheribel's Evidence Dep. at 62.
He has published only four scientific papers, and presented
nearly a dozen invited lectures, eight of which were on contact
lenses. Dr. Scheribel's CV. He admitted that he is not familiar
with what would be considered an "excessive" amount of
radiation, and was unable to explain what a "rad" was. Dr.
Scheribel's Discovery Dep. at 28. Yet, it is through Dr.
Scheribel that plaintiff expects to prove that his dose was too
high. He could not state what medical effects a single rad to
the eye would have. Dr. Scheribel's Discovery Dep. at 29.
Further, Dr. Scheribel admitted that he was not familiar with
the dose response curves of biological effects of radiation,
was not familiar with what effect a 400 rem dose would have on
the eye, and did not know what amount of radiation would be
required to induce radiation cataracts. Dr. Scheribel's
Evidence Dep. at 69. His total experience with radiation
induced cataracts is observing only five patients who Dr.
Scheribel believes had cataracts induced by radiation therapy
for cancer. Dr. Scheribel's Discovery Dep. at 41-42. Since Dr.
Scheribel's personal experience is that only radiation therapy
has produced cataracts, he essentially admits that dose is a
very crucial element and must be independently verified before
a diagnosis can be made. Otherwise, there is no logic to his
thought process since many, if not all, of the other patients
with cataracts would have had low dose exposures from common
Since Dr. Scheribel claims that he has seen about 4200 patients
with cataracts (Aff. of Dr. Scheribel at ¶ 2) and only five
were radiation induced, his opinion, as originally given (when
he admitted that he had not reviewed any medical literature),
rested on less than twelve hundredths of one percent of the
cataracts he has seen.
Dr. Scheribel examined the plaintiff on May 13, 1985. Dr.
Scheribel's Evidence Dep. at 13. O'Conner was also examined by
him on the following dates: 11/4/86; 9/8/87; and 6/10/88.
Plaintiff provided Dr. Scheribel with his "medical history"
stating that he "had cataracts caused by a radiation exposure
in October of 1983." Dr. Scheribel's Letter to Attorney Kenneth
D. Peters dated June 27, 1985. O'Conner did not reveal to Dr.
Scheribel that his father also had bilateral cataracts at
approximately age 40. Dr. Scheribel's Discovery Dep. at 23. Dr.
Scheribel looked into O'Conner's eyes with a microscope and
diagnosed him as having posterior subcapsular cataracts.
It is uncontested that O'Conner, like his father, has
posterior subcapsular cataracts. Aff. of Dr. McGrath attached
to Supplement to Defendants' Reply to Plaintiff's Motion in
Limine to Exclude Evidence or Reference to Dr. Philip McGrath
or Plaintiff's Father's Eye Condition; Dr. O'Brian's Dep. at
52-53. It is also uncontested that such cataracts can be caused
by many factors including genetics and very large doses of
radiation. However, Dr. Scheribel quickly leaped to the
conclusion that plaintiff's cataracts could only have been
caused by radiation exposure. Dr. Scheribel's Evidence Dep. at
27-28, 53. Dr. Scheribel based this opinion on the history
given by O'Conner and upon his own erroneous belief that
radiation induced cataracts have a clinically unique appearance
that "cannot be mistaken for anything else."
Thus, Dr. Scheribel's proposed testimony is not that
radiation can cause cataracts or that plaintiff has the type of
cataracts that can be caused by radiation. Both opinions are
admissible and medically valid. His challenged testimony is
that only radiation exposure received at Quad Cities could have
caused plaintiff's cataracts. Defendants maintain that such
testimony is not admissible under Rules 702, 703 and the Frye
test, supra p. 7, because it is medically erroneous.
B. Inference from Dr. Scheribel's Opinion on Duty Owed Issue
This court has ruled in a prior opinion that the standard of
care in this case is compliance with the federal numerical dose
limits. The readings on the radiation measuring instruments
which O'Conner wore establish such compliance unless there is
some credible evidence that he must have received much more
radiation. Plaintiff claims that since Dr. Scheribel will
testify that O'Conner does have radiation induced cataracts, a
jury is justified in ignoring the actual radiation measurements
made at the time by the scientific instruments that he wore and
substituting their belief that somehow he received hundreds of
rem. Defendants maintain that Dr. Scheribel's testimony that
only radiation exposure received at Quad Cities could have
caused plaintiff's cataracts is inadmissible and medically
invalid. Without it plaintiff has no credible evidence upon
which a reasonable jury could even infer that O'Conner received
a dose above the standards. Although on the surface Dr.
Scheribel's opinion at issue here seems to be a causation
opinion, it is also a medical opinion which serves, if
admissible, as the only basis upon which the plaintiff can
argue an inference of breach of the duty owed. Consequently,
the opinion that is challenged here as being inadmissible is
essential to both plaintiff's duty owed and causation burden of
C. The Federal Rules of Evidence
A court may admit expert testimony if the subject of such
testimony is beyond the knowledge of the average layman and it
"will assist the trier of fact to understand the evidence or to
determine a fact in issue." Fed.R.Evid. 702; Carroll v. Otis
Elevator Co., 896 F.2d 210 (7th Cir. 1990). An expert witness
is not permitted to guess or base his opinion on surmise or
conjecture. Brown v. Chicago & North Western Transp., 162 Ill. App.3d 926,
936, 114 Ill.Dec. 165, 516 N.E.2d 320, 328 (1st
Dist. 1987); In Re Agent Orange Prod. Liab. Litigation,
611 F. Supp. 1223, 1244, 1248-49 (E.D.N.Y. 1985), aff'd,
818 F.2d 187 (2nd Cir. 1987), cert. denied, Lombardi v. Dow Chem. Co.,
487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988); Johnston
v. United States, 597 F. Supp. 374 (D.Kan. 1984). A court is not
bound by the mere assertions of an expert, but it must "pay
special attention to expert testimony," United States v. Lundy,
809 F.2d 392, 395 (7th Cir. 1987), and must "look behind the
expert's ultimate conclusion . . . and analyze the adequacy of
its foundation." Peterson v. Sealed Air Corp., 1991 WL 66370,
1991 Lexis 5333 (N.D.Ill. 1991) (quoting Richardson v.
Richardson-Merrell, Inc., 857 F.2d 823, 829 (D.C. Cir. 1988)).
Otherwise any case in which an expert was willing . . . to
[testify] "to a reasonable degree of scientific certainty" and
[say] "the basis of my opinion is X, on which experts in my
field reasonably rely," every case requiring expert testimony
would get to the jury. If a court is not permitted to examine
the basis of an expert opinion in order to rule on the
admissibility of that opinion, then Rule 703 should read: "An
expert may cite as the basis of his opinion anything he likes."
In re Paoli R.R. Yard PCB Litig., 706 F. Supp. 358, 368 (E.D.Pa.
1988), rev'd on other grounds, 916 F.2d 829 (3rd Cir. 1990);
accord, Richardson v. Richardson-Merrell, Inc., 857 F.2d 823,
830 (D.C. Cir. 1988) (whether expert's opinion has adequate
basis is question of law for court), cert. denied,
493 U.S. 882, 110 S.Ct. 218, 107 L.Ed.2d 171 (1989). See also Mid-State
Fertilizer Co. v. Exchange Nat'l Bank, 877 F.2d 1333, 1339 (7th
Cir. 1989). Such scrutiny is required because an expert's
opinion "bears an aura of reliability and trustworthiness." It
is axiomatic that summary judgment is not precluded merely
because a party has produced an expert to support its position.
Peterson v. Sealed Air Corp., 1991 WL 66370, 1991 Lexis 5333
(N.D.Ill. 1991); Mid-State Fertilizer Co., 877 F.2d at 1339.
United States v. Tranowski, 659 F.2d 750, 757 (7th Cir. 1981)
(quoting United States v. Brown, 557 F.2d 541, 556 (6th Cir.
1977)). The subject of radiation and its effect on humans is
complicated and not easily understood. Therefore, it is
necessary to qualify would-be experts who might otherwise
obfuscate the issues and interfere with the outcome of this
case. See Akins v. Sacramento Municipal Utility District,
6 Cal.App.4th 1605, 8 Cal.Rptr.2d 785 (3rd Dist. 1992). As the
Seventh Circuit has warned, "there is not much difficulty in
finding a medical expert witness to testify to virtually any
theory of medical causation short of the fantastic." Stoleson
v. United States, 708 F.2d 1217, 1222 (7th Cir. 1983). Judge
Learned Hand observed that expert testimony creates the risk of
a special type of prejudice:
The trouble with all this is that it is setting
the jury to decide, where doctors disagree. The
whole object of the expert is to tell the jury,
not the facts . . . but general truths derived
from his specialized experience. But how can the
jury judge between two statements each founded
upon an experience confessedly foreign in kind to
their own? It is just because they are incompetent
for such a task that the expert is necessary at
Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1112 n.
10 (5th Cir. 1991), petition for cert. denied, ___ U.S. ___,
112 S.Ct. 1280, 117 L.Ed.2d 506 (1992), (quoting Hand,
Historical and Practical Considerations Regarding Expert
Testimony, 15 Harv.L.Rev. 40, 53 (1901)).
Federal Rules of Evidence 702 and 703 provide courts with the
means to screen carefully the qualifications, and factual and
scientific bases of an expert's opinion. Lundy, 809 F.2d at
395. A court has broad discretion to exclude an expert's
opinion if it cannot withstand the requirements of Rules 702
and 703. Twin Disc, Inc. v. Big Bud Tractor, 772 F.2d 1329 (7th
Cir. 1985) (court has broad discretion to assess admissibility
of expert testimony); Contractor Utility Sales Co. v.
Certainteed Corp., 748 F.2d 1151, 1155 (7th Cir. 1984) (same).
The Federal Rules of Evidence allow a court to intercede and to
limit expert testimony where a witness attempts to give an
opinion on a subject for which he is not qualified, when there
is no factual basis for that proffered opinion, when that
opinion is based upon an error of logic, and when the expert
cannot supply the court
with any verifiable scientific support for the opinion. The
Rules recognize that there is some limit to every expert's
expertise and that he can not be allowed to go beyond it. For
example, no medical doctor is automatically an expert in every
medical issue merely because he or she has graduated from
medical school or has achieved certification in a medical
specialty. Indeed, a medical doctor who is quick to proclaim
general and universally binding principles based on his or her
own very limited knowledge or experience in the precise medical
issue in question is more likely to mislead a jury than to help
them find the truth. In science, a proposition is not true just
because one claiming to be an "expert" is willing to make such
a statement. In law, a statement is not admissible just because
a self-proclaimed "expert" is willing to say it on the witness
stand. Scientific truths must be verifiable or they are not
scientific truths at all. An expert's opinion must also be
verifiable or it is not expert at all. Rules of both science
and evidence require a scientist or an expert to have a
verifiable scientific basis for his opinion. Such controls are
important in both fields to minimize error due to "junk"
D. Rule 702
An expert witness must be qualified by specialized
"knowledge, skill, experience, training or education."
Fed.R.Evid. 702; Carroll v. Otis Elevator Co., 896 F.2d at 212.
However, an "expert's opinion is helpful only to the extent
that expert draws on some special skill, knowledge, or
experience to formulate that opinion." United States v. Benson,
941 F.2d 598, 604 (7th Cir. 1991).*fn7 District courts must
ensure that expert opinion testimony is in fact expert opinion,
"(that is, an opinion informed by the witness' expertise)
rather than simply an opinion broached by a purported expert."
Id. See also Lundy, 809 F.2d at 396 (7th Cir. 1987). "Whether a
witness is qualified as an expert can only be determined by
comparing the area in which the witness has superior knowledge,
skill, experience, or education with the subject matter of the
witness's testimony." Otis Elevator Co., 896 F.2d at 212; Jurka
v. Commonwealth Edison Co., No. 88 C 7852 Transcript of
Proceedings at 5 (N.D.Ill., Aug. 9, 1990) (summary judgment
appropriate because plaintiff had an "unqualified expert who
relies upon an insupportable theory of causation"). A medical
degree "alone does not qualify [an expert] to give an opinion
on every conceivable medical question." Christophersen, 939
F.2d at 1113.*fn8
O'Conner intends that Dr. Scheribel would give to the jury at
trial an opinion in the unique, sophisticated and highly
specialized field of radiation induced cataracts, and yet Dr.
Scheribel does not qualify as an expert in this field through
personal experience, specific education or even study of the
relevant literature. In short, Dr. Scheribel's opinion that
radiation cataracts are pathognomonic is not based on any
special skill, knowledge, research or experience. He admitted
in deposition that he never studied or performed research in
radiation physics, that he has never conducted any studies on
the medical effects of radiation on the eye, that he did not
know the threshold dose required to induce cataracts and that
he did not even have a rudimentary knowledge of the dose
response curves for the effects of radiation. Dr. Scheribel's
Evidence Dep. at 22, 62, 66, 69.
Based on the five patients he has observed with cataracts
induced by radiation therapy, he developed his "binding
universal rule" that he applied to O'Conner, thus committing
the logical fallacy known as the Converse Accident (hasty
generalization). The logical fallacy of Accident is the
improper application of a general rule to a particular case.
The logical fallacy of Converse Accident (hasty generalization)
is the reverse. It occurs when a person erroneously creates a
general rule from observing too few cases. Dr. Scheribel has
illogically created a "binding universal rule" based upon
For example, observing the value of opiates when
administered by a physician to alleviate the pains
of those who are seriously ill, one may be led to
propose that narcotics be made available to
everyone. Or considering the effect of alcohol
only on those who indulge in it to excess, one may
conclude that all liquor is harmful and urge that
its sale and use should be forbidden by law. Such
reasoning is erroneous and illustrates the fallacy
of converse accident or hasty generalization.
I. Copi, Introduction to Logic, at 68 (3rd ed.).
When pressed by this court for the bases of his opinion he
abandoned any reliance on his personal experience and relied
only on medical articles (which he admitted he had not read
before giving his opinion). See Aff. of Dr. Scheribel.
E. Ruling on Rule 702
As shown by the testimony of five of the world's leading
experts in the field of radiation induced cataracts
(see Affidavits of Drs. Merriam, Cogan, Upton, Wellman and
Casarett), and the testimony of plaintiff's treating
ophthalmologists (Cf. Dr. Bond's Dep. at 17; Dr. Nelson's Dep.
at 16; Dr. Ward's Dep. at 34, 6, 10, 23), this field is highly
specialized and is not a part of the routine practice of
ordinary ophthalmologists. It requires a demonstrated
expertise, if not by experience, at least by a study of all the
published literature. Dr. Scheribel has no such experience and
did not even take the time to examine the published literature
before giving his bald opinion. Accordingly, Dr. Scheribel is
not qualified to render an expert opinion that radiation
cataracts are pathognomonic or that plaintiff's cataracts could
only be caused by radiation exposure. His testimony on this one
point can be excluded on that basis alone. Fed.R.Evid. 702. Dr.
Scheribel is qualified to testify on matters of general
ophthalmology, such as the fact that O'Conner has posterior
subcapsular cataracts. But such testimony is not sufficient to
survive a motion for summary judgment on the facts of this
F. Rule 703
An additional independent evidentiary basis exists for
excluding Dr. Scheribel's opinion. An expert's opinion must
have a sufficient verifiable scientific basis; the scientific
data underlying his opinion must be of the type that is
reasonably relied upon by experts in the field. Fed.R.Evid.
703; United States v. Lundy, 809 F.2d at 395; United States v.
Tranowski, 659 F.2d at 755; Viterbo v. Dow Chem. Co.,
826 F.2d 420, 422 (5th Cir. 1987) (where expert's opinion is not
supported by scientific evidence his opinion "that it is so" is
not admissible); In Re Agent Orange, 611 F. Supp. at 1244.
"Courts are particularly wary of unfounded expert opinion when
causation is the issue." Id. at 1249. This is especially true
in cases such as this where the plaintiff claims that exposure
to a toxic substance caused his injury. The court is concerned
that the jury may blindly accept an expert's opinion that
conforms with their underlying fears of toxic substances
without carefully understanding or examining the basis for that
Whether an expert's opinion has a sufficiently verifiable
scientific basis is an issue of law for the court to decide.
Richardson, 857 F.2d at 833. Although an expert opinion is
indispensable to a case,
that is not to say that the court's hands are
inexorably tied, or that it must accept
uncritically any sort of opinion espoused by an
expert merely because his credentials render him
qualified to testify.
Id. at 829. A court has a duty "to examine the reliability of
an expert's sources to determine whether they satisfy the
established by [Rule 703]." Christophersen, 939 F.2d at 113
(quoting Slaughter v. Southern Talc Co., 919 F.2d 304, 306-07
(5th Cir. 1990)).
Such critical evaluation of the bases of an expert's opinion
furthers the court's interest in providing relevant, accurate
information to the jury to help it decide a fact in issue.
Where the basis of an expert's opinion "is of such little
weight" the jury should not be allowed to receive the opinion
because such unsupported opinion "offers no expert assistance
to the jury." Viterbo, 826 F.2d at 422; United States v. Davis,
772 F.2d 1339, 1344 (7th Cir. 1985), cert. denied,
474 U.S. 1036, 106 S.Ct. 603, 88 L.Ed.2d 581 (1985). If the basis of the
expert opinion is unsound, his conclusion is inaccurate, and
the jury does not have sufficient evidence on which to decide
the case. See, e.g., Ealy v. Richardson-Merrell, Inc.,
897 F.2d 1159, 1161-62 (1990); Brock v. Merrel Dow Pharm. Inc.,
874 F.2d 307, 309 (5th Cir. 1989). Courts must reject opinions "founded
on critical facts that are plainly untrustworthy, principally
because such an opinion cannot be helpful to the jury."
Christophersen, 939 F.2d at 1114.
In December 1989, this court entered an Order requesting
plaintiff to supplement "the information that provides the
basis for this opinion," that "radiation cataracts cannot be
mistaken for anything else." See court Order dated December 22,
1989. In response, plaintiff submitted an affidavit by Dr.
Scheribel which stated: "Regarding my opinion . . . I rely on
scientific articles such as those attached to this affidavit."
In his Affidavit, Dr. Scheribel did not claim to rely on his
personal experience of seeing only five cases of radiation
induced cataracts as support for his opinion. Thus, he
abandoned the sole basis upon which he had made his opinion
because in his deposition he admitted that he had not reviewed
the medical literature prior to coming to his conclusion. Dr.
Scheribel attached or listed the following articles and
excerpts: (1) Diseases of the Lens and Vitreous; Glaucoma and
Hypotony by Duke-Elder, Vol. XI, (1969) pages 82-83; (2) Duane,
Clinical Ophthalmology, page 8; (3) Apple, Diseases of the Lens
(a medline search failed to reveal any such book or article and
defendants repeated requests for a copy of the article from the
plaintiff have remained unanswered);*fn9 and (4) an excerpt of
a section entitled "X-Ray and Radium Cataracts" from an unknown
book by an unknown author. See Aff. of Dr. Scheribel at ¶ 3.
"The mere recitation of a list of studies is not a magical
incantation paving the way to the witness stand unless it is
accompanied by reasoned and scientifically accepted analysis."
Eggar v. Burlington Northern Railroad Co., 1991 WL 315487, 6
(D.Mont., Dec. 18, 1991) (quoting Carroll v. Litton Systems
Inc. No. B-C-88-253, 1990 WL 312969, 1990 U.S.Dist. Lexis 16833
(W.D.N.C., Oct. 29, 1990) (magistrates opinion adopted by
district court by Order dated July 15, 1991)).
The court has examined these references and the associated
affidavits and briefs and concludes that not one of these
articles or excerpts supports Dr. Scheribel's opinion that a
radiation induced cataract "cannot be mistaken for anything
else." To the contrary, the three articles (that were attached)
all stated what consensus science has discovered through years
of research: posterior subcapsular cataracts have a
characteristic appearance in that radiation induced cataracts
are of the posterior subcapsular type, but not all posterior
subcapsular cataracts are radiation induced. Duke-Elder, System
of Ophthalmology, (1972) Vol. XIV, Ch. X at 994-95; Aff. of Dr.
Apple at ¶ 14; Aff. of Dr. Silberstein at ¶ 22; Aff. of Dr.
Apple at ¶¶ 14, 19. Dr. Scheribel's first reference to a dated
1969 edition of the Duke-Elder Series cited the wrong pages and
totally missed the relevant sections pertaining to radiation
induced cataracts in humans. He cited from a section in Chapter
Three titled Experimental Cataract that concerns experimentally
producing cataracts in animals, not in
humans at all. This error is particularly egregious since the
very section Dr. Scheribel cited explicitly instructs the
reader to turn to the section that is directly relevant to
A radiational cataract . . . These will be
discussed in the volume of Injuries where full
details with the appropriate bibliographics will
Duke-Elder, System of Ophthalmology, (1969 ed.), Vol. XI,
Chapter III, at 81. It would appear that Dr. Scheribel never
even read the pages that he cited to the court or he would have
seen his error.
An examination of that relevant section directly contradicts
Dr. Scheribel's opinion: "The clinical picture of a radiational
cataract from whatever source it is derived is
characteristic [not pathognomonic]." Duke-Elder, System of
Ophthalmology, (1972 ed.), Vol. XIV, Chapter X, at 994-95
(emphasis added). The court notes that Duke-Elder cites to and
relies upon the very studies performed by defendants' experts,
Drs. Merriam and Cogan. This court finds that Dr. Scheribel
misinterpreted and cited the wrong sections of the very
reference upon which he himself relies. Thus, Duke-Elder does
not provide a basis for Dr. Scheribel's opinion, but rather
directly supports the defendants' position.
Dr. Scheribel's second reference is to Duane. The pertinent
sentence from the single page attached to Dr. Scheribel's
Affidavit simply says that "Other methods used to produce
cataracts are radiation . . . Radiation cataracts appear to be
confined locally to the region of the lens receiving
irradiation while the shielded region is less damaged." This
statement does not support Dr. Scheribel's opinion that a
radiation induced cataract is so unique in appearance that it
can be clinically identified as being caused by radiation and
nothing else. To the contrary, Duane only says that a radiation
induced cataract is of the posterior subcapsular type which is
"a very common variety." Duane, Clinical Ophthalmology, Vol. I,
Chapter 72 at 16. Again, the court finds that Duane contradicts
Dr. Scheribel's opinion and directly supports the affidavits of
all the defense experts. Dr. Scheribel's third reference is to
Diseases of the Lens by Apple.
Since this issue was briefed in January 1991, the "Apple"
reference Dr. Scheribel was attempting to cite, and claimed to
rely upon, has been located by defendants. Dr. David Apple has
published, along with Dr. Rabb, a book entitled Ocular
Pathology. Aff. of Dr. Apple at ¶¶ 7-9. This must be the book
which Dr. Scheribel miscited as "Diseases of the Lens, Apple's
by Apple." Since Dr. Scheribel's affidavit is dated January 12,
1990, he must have been referring to the 3rd edition which was
published in 1985 and was the most current edition available in
1990. However, he must not have actually reviewed the book
since Dr. Apple states that posterior subcapsular cataracts can
be caused by many conditions and that their appearance is
"identical" regardless of the cause:
One of the most common pathologic reactions of the
lens epithelium is an abnormal overgrowth, or
proliferation of the equatorial cells, creating a
posterior migration of the lens epithelium . . .
This reaction occurs in most idiopathic "senile"
posterior subcapsular (cupuliform) cataracts . . .
Posterior migration and bladder cell formation
signify a histopathologic lesion, not a specific
disease. Therefore, such diverse conditions as
senile cataract, secondary traumatic cataract, and
congenital cataract associated with hyaloid
vascular remnants can create an identical tissue
Apple, supra at 127 (emphasis in original). Thus, a radiation
induced cataract is just one type of secondary traumatic
cataract. Dr. Apple concluded that radiation induced cataracts
are not pathognomonic and he even used italics to warn the
reader that posterior subcapsular cataracts are caused by
"diverse conditions" and "are not a specific disease." Aff. of
Dr. Apple at ¶ 10. Dr. Apple himself even filed an affidavit
with this court stating that Dr. Scheribel's opinion is wrong
and certainly is not supported by Dr. Apple's book.