by the plaintiffs' experts, for the past few years Muzzey's EPO levels have been high.
As an initial matter, I find that Dr. Demopoulos is not qualified to testify whether Muzzey has PV. He has not spoken with any of Muzzey's physicians or examined Muzzey's blood or bone marrow samples. He has no expert knowledge of hematology.
In his supplemental report, he admitted that he "relied on the treating doctor's diagnosis of polycythemia vera (PV) because [he] did not examine her blood or marrow studies." He may therefore not testify on whether Muzzey has PV.
Dr. Radford is similarly unqualified to testify that Muzzey has PV. He is not a hematologist and has not treated a patient for over forty years. When asked if he could explain the inconsistency between Muzzey's high EPO levels and a diagnosis of PV, he answered only that a patient's EPO levels may rise after phlebotomies. He did not know, however, what EPO levels normally are, or how much they may rise after phlebotomies.
Dr. Tai is the only plaintiffs' witness to have expertise in hematology. His opinion that Muzzey has PV, however, is not supported by a scientifically reliable methodology.
Dr. Tai has diagnosed Muzzey with PV based upon a report that a sample of Muzzey's bone marrow tissue grew an erythroid colony in vitro.27 Muzzey's medical records, however, do not contain the laboratory report for this test, nor any description of the procedure followed. The only evidence the plaintiffs present is a handwritten note discussing the results which appears in the records of Muzzey's then-treating physician. Dr. Tai claims that this reported result of this marrow test suffices to justify a diagnosis of PV.
In making his diagnosis, Dr. Tai not only did not see the lab results themselves, but he did not have another test performed with Muzzey's marrow. Furthermore, Dr. Tai admitted in his deposition that a positive erythroid colony did not necessarily mean PV. Although testifying that it was "suggestive" of PV rather than secondary erythrocytosis, Dr. Tai could not state that the positive result was inconsistent with a diagnosis of secondary erythrocytosis. I therefore find that he has not used a scientifically reliable method in rendering his diagnosis.
When faced with the fact that Muzzey does not appear to fit the established criteria of PV, Dr. Tai pointed to an article in which the authors stated that the criteria list has been criticized as underinclusive. Aside from this article, Dr. Tai presents no reasons for departing from the medical literature on what constitutes PV.
Dr. Tal's basis for ignoring Muzzey's high EPO levels is similarly unscientific. His answer to this inconsistency was to suggest that her high EPO levels resulted from periodic phlebotomles used to manage her condition. In support of this contention, he cited several articles observing EPO increases after phlebotomies. One of the articles he cites, however, shows that PV patients' EPO levels sometimes decreased after phlebotomy, and never rose above the normal range. Nor do any of the other articles he cites observe post-phlebotomy increases as high as Muzzey's EPO levels. Therefore none of the articles cited by Dr. Tai provides a reliable basis for discounting Muzzey's high EPO levels.
In response to this problem, Dr. Tai then speculated that "one could make an argument" that Muzzey has "a variant of [PV]." His guess that Muzzey may have a variant of PV is a simple "subjective belief or unsupported speculation" and therefore inadmissible.
Finally, Dr. Tai also uses an unscientific basis to determine that Muzzey did not have her illness before she moved to West Chicago.
Muzzey's medical records show that her hemoglobin levels were elevated, an indicator of both secondary erythrocytosis and PV, in 1984, two years before she moved to West Chicago. Dr. Tai's response to this evidence is to state that through conversations with the Muzzey family, he ascertained that Muzzey's mother visited friends in West Chicago while pregnant with her. Moreover, Dr. Tai stated that the plaintiffs' dose expert had calculated a prenatal dose of radiation for Muzzey. Dr. Tai's supplemental report states that Muzzey's "rising hemoglobin 2 years before she actually moved to the West Chicago area does not indicate that she therefore did not have radiation as a possible cause of her disease ... . This can still be consistent with prenatal radiation exposure." The plaintiff's dose expert, however, did not calculate any prenatal radiation exposure to Muzzey. I therefore find that Dr. Tai's conclusion that Muzzey could have contracted PV based on prenatal exposure to the West Chicago thorium is not grounded in science. The plaintiffs have not made any attempt to quantify the amount of exposure Muzzey may have received. An opinion based on prenatal exposure is pure speculation and therefore inadmissable.
In sum, Dr. Tai's analysis is not reliable to show that Muzzey has PV, rather than secondary erythrocytosis. His reliance on articles showing high EPO levels after phlebotomies do not support Muzzey's high EPOs. Additionally, his reliance on a secondhand lab report of Muzzey's treating physician, rather than an accurate lab report is not scientific. Lastly, his guess that Muzzey was exposed prenatally is pure speculation.
Muzzey has failed to demonstrate that the opinions of Drs. Demopoulos, Radford, ana Tai on whether radiation can cause PV and whether Muzzey has PV are grounded in the scientific method.
Consequently, their testimony regarding April Muzzey is not admissible under Rule 702 and Daubert.
Elaine E. Bucklo
United States District Judge
Dated: March 26, 1996