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MUZZEY v. KERR-MCGEE CHEM. CORP.

March 26, 1996

GARY MUZZEY and CYNTHIA MUZZEY, as parents and next friends of APRIL MUZZEY, a minor, and PATRICIA BRYAN, Individually and as Special Administrator of the Estate of STEPHANIE BRYAN, deceased, and DENNIS BRYAN, Individually, Plaintiffs,
v.
KERR-MCGEE CHEMICAL CORPORATION, a Delaware Corporation and KERR-MCGEE CORPORATION, a Delaware Corporation, Defendants.



The opinion of the court was delivered by: BUCKLO

 Before the Court is defendants' motion to bar the expert testimony of Drs. Demopoulos, Radford, and Tai pursuant to Federal Rule of Evidence 702. For the reasons stated herein, defendants' motion is granted in part. *fn1"

 April Muzzey was born in 1980 and moved to West Chicago, Illinois in 1986. In 1990, Muzzey's doctors observed an overabundance of red blood cells in her body, a condition known as erythrocytosis. Muzzey contends that she therefore has a disease called polycythemia vera ("PV"). *fn2" PV is "[a] chronic myeloproliferative disorder of unknown cause characterized by an increase in [hemoglobin] concentration and [erythrocytosis]." THE MERCK MANUAL 1189 (Robert Berkow et al. eds., 16th ed. 1992). *fn3"

 For decades, the West Chicago Rare Earths Facility refined monazite ore in order to remove thorium from it. *fn4" The by-product of this refining process was a sand-like material, called tailings, which retained some thorium. These tailings were dumped in Reed-Keppler Park in West Chicago. While living in West Chicago, Muzzey played in this park. Defendants Kerr-McGee and Kerr-McGee Corp. (collectively, "Kerr-McGee") now own the refining facility. Muzzey has brought this suit alleging that radiation from thorium tailings caused her to contract PV.

 Kerr-McGee disagrees that the thorium tailings caused Muzzey's illness. They argue that the plaintiffs cannot prove that radiation causes PV or that Muzzey even has PV. They assert that Muzzey has secondary erythrocytosis which, unlike PV, is not fatal. *fn5" The defendants contend that Muzzey's tests reveal an elevated level of the hormone erythropoietin ("EPO"), which is inconsistent with a diagnosis of PV. *fn6" Moreover, neither Muzzey's present treating physician, nor the Mayo Clinic specialists who have examined her, diagnoses Muzzey's illness as PV. *fn7" The distinction between the two possible afflictions is crucial to Muzzey's case, for although the parties dispute whether radiation is capable of causing PV, neither party contends that radiation can cause secondary erythrocytosis.

 In June of 1995, the defendants moved to exclude the plaintiffs' experts from testifying. Counsel for the plaintiffs subsequently sent each expert a letter, requesting him to address Kerr-McGee's arguments. *fn8" Attached to their response brief, the plaintiffs then submitted "Rebuttal Reports" from each expert. In these "Rebuttal Reports," the experts attempted to address the claimed flaws in their testimony. Throughout this opinion, I refer to the experts' initial reports as their "Rule 26 reports" and to their "Rebuttal Reports" as their "supplemental reports."

 The Experts

 At trial, the plaintiffs intend to introduce the expert testimony of Drs. Demopoulos, Radford, and Tai. All three witnesses will testify that radiation from the thorium tailings caused Muzzey to contract PV.

 Harry Demopoulos

 According to his deposition testimony, Harry Demopoulos is a pathologist who testifies regularly in litigation matters. *fn9" He is an associate professor at New York University School of Medicine, but does not teach classes or conduct research there. He has conducted no academic research on PV, although he has performed and published research on the hormone EPO and its production. He has never acted as a primary care physician for a patient with PV or any other myeloproliferative disease. Outside this case, he has never been asked to provide an expert opinion about the causes of PV. He admits that he is not an expert in hematology.

 Dr. Demopoulos has never spoken with Muzzey's father or her treating physicians. He spoke with Muzzey's mother once, but only after he had formed his opinion and submitted his Rule 26 report. He did not examine Muzzey's blood or marrow studies and admits that he has not independently diagnosed Muzzey's illness.

 Dr. Demopoulos opines that radiation from the thorium tailings caused Muzzey to contract PV. Dr. Demopoulos finds it "unlikely that April Muzzey could have had her disease induced by anything other than radiation." Moreover, he admits that no matter how little radiation Muzzey is proven to have received, he would still think that radiation caused her disease.

 Dr. Demopoulos' Rule 26 report for Muzzey is filled with extraneous statements that have little scientific backing or relevance. For example, he states that alpha emitters (such as thorium) "are especially efficient producers of cancers." PV, however, is not cancer. He also states that "it is well known that sub-microscopic quantities of Thorium-232 and its decay chain are dangerous." Again, however, he does not explain how this statement supports his opinion that PV may be caused by radiation.

 Edward Radford

 Edward Radford graduated from Harvard Medical School in 1946. He is an environmental epidemiologist who spent several years in academia, teaching classes and conducting research on the effects of radiation. He was also Chairman of the Committee on the Biological Effects of Ionizing Radiation, which published a report of its findings in 1980, called the BEIR III report. From 1983 to 1984, he visited at the Radiation Effects Research Foundation in Hiroshima, Japan. There he assisted in epidemiological studies of survivors of the atomic bombs dropped on Hiroshima and Nagasaki.

 Although Dr. Radford purported to independently diagnose Muzzey with PV, he has no expertise in hematology. He has never treated anyone with PV or published anything about it. Although he claims to have reviewed all of Muzzey's medical records, at his deposition he did not remember that she had been examined at the Mayo Clinic. *fn10" He has never spoken to Muzzey, her parents, or any of the physicians who examined Muzzey.

 Henry Tai

 Unlike Drs. Radford and Demopoulos who have little expertise in hematology, Henry Tai is a medical doctor with some expertise in hematology, though he is not board certified in it. *fn11" He has published no articles on PV and has never been asked to provide an expert opinion on it. Although he has treated patients with PV, he has never met or examined Muzzey.

 Is the Expert Testimony based on Scientific Knowledge?

 As a preliminary matter, I note that the plaintiffs must prove both general and specific causation. See, e.g., Wade-Greaux v. Whitehall Laboratories, Inc., 874 F. Supp. 1441, 1475 (D. V.I. 1994) (citing DeLuca by DeLuca v. Merrell Dow Pharmaceuticals, Inc., 911 F.2d 941, 958 (3rd Cir. 1990)), aff'd, 46 F.3d 1120 (3rd Cir. 1994); Casey v. Ohio Medical Products, 877 F. Supp. 1380, 1382 (N.D. Cal. 1995).

 Drs. Demopoulos, Radford, and Tai all opine that radiation can cause PV. Each witness puts forth several different bases to support his opinion that radiation can cause PV.

 Analogy to CML

 All three experts assert that because radiation exposure causes Chronic Myelogenous Leukemia ("CML"), another myeloproliferative disease, radiation exposure probably also causes all other myeloproliferative diseases, including PV.

 Although each of the three witnesses agrees that the analogy from CML to PV provides a basis for his opinion that radiation can cause PV, they do not articulate similar reasons as to why this conclusion follows. For example, Dr. Tai assumes that because PV and CML are both called myeloproliferative disorders, they share the same etiology. Dr. Radford, however, states that all myeloproliferative diseases may not share the same etiology. Dr. Demopoulos similarly does not assume that ...


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