In their complaint, plaintiffs make several allegations sounding in product liability, negligence, and wrongful death against Raytheon and Raytheon Service. Plaintiffs allege that a dangerous level of radiant energy was being emitted from the VDTs manufactured and/or distributed by defendants and that, because of such leakage, they sustained injuries and are entitled to damages. Defendants maintain that the opinion testimony of Dr. Zaret is insufficient to demonstrate the existence of a triable issue of fact concerning the suitability of the Raytheon VDTs and the causation of plaintiffs' injuries. For this reason defendants move for summary judgment.
A. Admissibility of Expert Opinion
Plaintiffs do not dispute that their claims require a finding of fact that the Raytheon VDTs were defective and caused the alleged injuries. The substance of plaintiffs' case rests on Dr. Zaret's expert opinion, both to establish that the VDTs were defective and to prove the causal relationship connecting plaintiffs' illnesses to their use of the VDTs. The admissibility of Dr. Zaret's expert opinion is therefore crucial to plaintiffs' case and to the outcome of defendants' present motion.
A person may testify as an expert when l) the person is "qualified as an expert by knowledge, skill, experience, training, or education" (Fed.R.Evid. 702), 2) the court finds that "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue" (Fed.R.Evid. 702), and 3) the particular facts or data upon which a person bases an opinion are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject" (Fed.R.Evid. 703). Each of these issues regarding an expert's testimony is a matter of law to be determined by the trial judge, Wallace v. Mulholland, 957 F.2d 333, 336 (7th Cir. 1992), while the decision of whether to credit the expert's testimony is left to the finder of fact. Ferebee v. Chevron Chemical Company, 237 U.S. App. D.C. 164, 736 F.2d 1529, 1535 (D.C.Cir.), cert. denied, 469 U.S. 1062, 83 L. Ed. 2d 432 , 105 S. Ct. 545 (1984); U.S. ex rel. Eckhardt v. Huch, 1989 U.S. Dist. LEXIS 9435 (N.D. Ill. June 27, 1989).
Defendants do not argue that Dr. Zaret is unqualified to testify as an expert or that his opinions, if admissible, would not assist the trier of fact in understanding the evidence or determining a fact in issue. The first two requirements for admissibility of expert testimony, therefore, are not discussed in this opinion and are considered satisfied for purposes of this motion. The third requirement of expert testimony has been called into question by defendants, however, and that requirement forms the basis of our discussion.
Federal Rule of Evidence 703 provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Rule 703 liberalizes the admissibility of expert testimony by permitting experts to base their opinions on hearsay and other evidence not admissible in court. The rule is restrictive, however, in that the data relied on must be "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Thus, expert testimony must be rejected if it lacks an adequate basis.
The traditional test governing the admissibility of expert testimony has been whether the expert's theory is generally accepted within the scientific community. Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C.Cir. 1923). In recent years, however, courts have interpreted the "reasonably relied upon" requirement of Rule 703 to require only that the expert's scientific knowledge be based on sound methodology. Ambrosini v. Labarraque, 966 F.2d 1464 (D.C. Cir. 1992); U.S. v. Lundy, 809 F.2d 392, 395 (7th Cir. 1987); Osburn v. Anchor Laboratories, Inc., 825 F.2d 908, 915 (5th Cir. 1987), cert. denied 485 U.S. 1009, 99 L. Ed. 2d 705 , 108 S. Ct. 1476 (1988); Ferebee, 736 F.2d at 1535; Porter v. Whitehall Laboratories, Inc., 791 F. Supp. 1335, 1343 (S.D. Ind. 1992). An expert has used sound methodology when he or she has arrived at his or her "causation opinion by relying on methods that other experts in his [or her] field would reasonably rely upon in forming their own, possibly different, opinions." Osburn, 825 F.2d at 915. We, too, adopt this methodology-based standard of review.
A methodology-based review is even more necessary when the expert's scientific theory of causation is novel or emerging -- as is Dr. Zaret's (Zaret Dep. at 89). Indeed, a new or emerging theory rarely would find immediate wide acceptance in the scientific community. Care must be taken so as not to hinder progressive scientific research or restrict changes in the field of science. Ambrosini, No. 90-7146, 90-7148 at 11. Therefore, the expert's methods -- not his theory -- must be examined to ensure that his procedures are of a type reasonably relied upon in the scientific community. Under the methodology-based approach, the procedures employed by the expert cannot diverge significantly from the methods accepted by other experts in the field. Daubert v. Merrell Dow Pharmaceuticals, Inc., 951 F.2d 1128, 1130 (9th Cir. 1991), cert. granted, 113 S. Ct. 320, 121 L. Ed. 2d 240; see also Osburn, 825 F.2d at 915; Porter, 791 F. Supp. at 1343 . Thus, the expert's methods must have some scientific support, such as published studies, replication or verification, beyond the testifying expert's own hypothesis. Porter, 791 F. Supp. at 1344 ; see also Daubert, 951 F.2d at 1131. "There must be a connection between the currently-observed facts and some known scientific paradigm." Id. at 1343. We examine the evidence provided by plaintiffs to determine whether the facts and data supporting Dr. Zaret's opinion are of a type reasonably relied upon by other experts in the field.
After scrutinizing Dr. Zaret's deposition and affidavit to find evidence or information about his methodology, we are left with very little. In his affidavit, Dr. Zaret stated that his opinions are based on "specific information concerning measurable levels of exposure to nonionizing radiation" (Zaret aff. P 6). The doctor based his opinion on "firm knowledge that the data of the standards setting committee were fatally flawed" due to the fact that "irradiation levels lower than those permitted by the mother standard were known to produce injury in laboratory animals" (Zaret aff. P 18). He further noted that he based his opinion on his personal knowledge of "many human radiation cases indicating the standards were wrong" and the "fact that the prerequisites for establishing meaningful safety standards, such as, proper laboratory animal research," had not yet been performed (Zaret aff. P 18). The doctor, however, cites no published studies (his or others), scientific data, or other authority upon which he relied in forming his theory.
The factors which the doctor stated formed the basis of his opinion do not constitute sound methodology. They are mere observations and conclusory statements.
As evident from our discussion above, the doctor's affidavit and deposition fail to establish sound methodology. Nevertheless, plaintiffs attempt to set out a methodology for the doctor, as a substitute for the doctor's own statements. They state in their brief (p. 4-5):
[Dr. Zaret] relies upon the radio frequency output measure on the very machines in question and notes the variance between frequency output and the output of the subject machine. He sets forth his opinions on radiant energy, which are based upon his and others observations. . . . Dr. Zaret relies on the published experiments of others for his reliance on the fact that non-ionizing radiation is detrimental to biological systems.
Plaintiffs state that Dr. Zaret relies upon the "radio frequency output measure on the very machines in question and notes the variance between frequency output and the output of the subject machine." According to Dr. Zaret, and based on the evidence we have been presented with, there was no actual, reliable measurement of radio frequency emissions from the Raytheon VDTs. Furthermore, there is no evidence that Dr. Zaret ever noted the variance between the frequency output and the output of the VDTs at KLM, or that he relied on any such measurement of radio frequency energy emitted by the VDTs.
Plaintiffs note that Dr. Zaret based his opinions on "his and others observations." However, plaintiffs neglect to explain what these observations were or whether the data the doctor considered was the type generally relied on by the scientific community.
More troublesome yet is plaintiffs' reference to Dr. Zaret's reliance on "published experiments of others." Although reliance on published experiments may constitute sound methodology, plaintiffs have not included the studies or experiments, but have included interpretations from magazine articles. More importantly, there is no evidence that the articles are recognized as reliable authority in the field. See e.g., U.S. v. Vital Health Products, Ltd., 786 F. Supp. 761, 771 (E.D. Wisc. 1992); In re Related Asbestos Cases, 543 F. Supp. 1142, 1149 (N.D. Cal. 1982). Again, Dr. Zaret never mentioned that he relied on "published experiments" and made no reference in his deposition or affidavit to the three articles which plaintiffs attached in support of the doctor's methodology.
Dr. Zaret's general statements that the injuries were caused by radiant emissions are not enough to establish sound methodology. The doctor does not point us to scientific studies, data, or research in support of his theory. Dr. Zaret's opinion that the facts of this case fit his own unsupported, unproven hypothesis does not establish a reliable methodology and, therefore, the testimony is inadmissible. Porter 791 F. Supp. at 1344 .
B. The Standards for Summary Judgment Under Rule 56
The issue of admissibility of an expert's opinion under Rule 703 is separate and distinct from the issue of whether plaintiffs have created a genuine issue of material fact sufficient to withstand a motion for summary judgment under Rule 56. Mid-State Fertilizer, 877 F.2d at 1339. Apart from Dr. Zaret's opinion testimony, however, plaintiffs have not put forth evidence to indicate that the VDTs were defective and that they caused Hayes' and Sampson's illnesses. The evidence put forth by plaintiffs is insufficient to withstand a motion for summary judgment and defendants' motion is, therefore, granted.
JAMES B. MORAN,
Chief Judge, U.S. District Court
November 12, 1992.