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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 plaintiffs' motion to bar the expert testimony of Dr. Spivak pursuant to Federal Rule of Evidence 702. For the reasons stated herein, plaintiffs' motion is denied.

 Facts

 April Muzzey was born in 1980 and moved to West Chicago 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"). *fn1" PV is a "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).

 For decades, the West Chicago Rare Earths Facility refined monazite ore in order to remove thorium from it. *fn2" 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 Muzzey has PV, arguing that she has a less serious disease known as secondary erythrocytosis. To show that Muzzey does not have PV, Kerr-McGee intends to offer the expert testimony of Jerry L. Spivak. Dr. Spivak is a professor at the Johns Hopkins University School of Medicine who has done clinical research on the distinctions between PV and secondary erythrocytosis. The plaintiffs do not argue that he is not qualified to testify about Muzzey's illness. They instead bring this motion solely to bar his "opinion that [Muzzey's] secondary erythrocytosis was renal hypoxic erythrocytosis" and his "suggestion that the erythrocytosis was of an unknown type," arguing that these opinions are merely speculation.

 Expert Opinion

 Kerr McGee, as the proponent of the proffered expert testimony, bears the burden of establishing its admissibility by a preponderance of the evidence. Bradley v. Brown, 852 F. Supp. 690, 697 (N.D. Ind.), aff'd, 42 F.3d 434 (7th Cir. 1994). To determine whether Kerr-McGee has met its burden, I apply FED. R. EVID 702 as construed by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). Under Rule 702, "if scientific . . . knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," an expert witness may testify thereto. A trial judge faced with a proffer of expert scientific testimony

 
must determine at the outset . . . whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.

 Daubert, 113 S. Ct. at 2796. The Seventh Circuit has interpreted Daubert to require a two-step inquiry:

 Gruca v. Alpha Therapeutic Corporation, 51 F.3d 638, 643 (7th Cir. 1995) (citing Porter v. Whitehall Laboratories, Inc., 9 F.3d 607, 616 (7th Cir. 1993)).

 Applying this standard, I find that Dr. Spivak's testimony is admissible. Neither party disputes that Muzzey's body produces an excess number of red blood cells, a condition known as erythrocytosis, and that her kidneys produce excess levels of the hormone erythropoietin. Dr. Spivak's opinion explains that erythropoietin is produced primarily by the kidneys. The kidneys may produce extra erythropoietin if they sense hypoxia, which is a continuing shortage of oxygen in the blood. An overproduction of erythropoietin by the kidneys can result in an overproduction of red blood cells. Thus, if Muzzey suffers from a kidney abnormality such that her kidneys erroneously sense hypoxia, then her kidneys could overproduce erythropoietin, resulting in excess red blood cells, or secondary erythrocytosis. *fn3"

 Dr. Spivak references clinical data to support his opinion that Muzzey's right kidney is abnormal. For example, in February of 1991 the Mayo Clinic performed a radioactive renogram which revealed a possible vascular abnormality in the right kidney, as well as an intravenous pyelogram (defining kidney anatomy), which showed a loss of tissue in the upper pole of the right kidney. An abdominal ultrasound examination in May 1993 revealed that Muzzey's right kidney was one centimeter smaller than her left kidney, which indicates a possible abnormality in renal arterial blood flow. (The plaintiffs do not argue either that this data is flawed or that Muzzey does not have a kidney ...


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