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Braun v. Lorillard Inc.

May 17, 1996

SARA LEE BRAUN, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF NORMAN BRAUN, DECEASED, PLAINTIFF-APPELLANT,

v.

LORILLARD INCORPORATED AND HOLLINGSWORTH & VOSE COMPANY, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 976 Blanche M. Manning, Judge.

Before POSNER, Chief Judge, and ROVNER and EVANS, Circuit Judges.

POSNER, Chief Judge.

ARGUED APRIL 8, 1996

DECIDED MAY 17, 1996

Concerns with the abuse of the litigation process are being voiced ever more loudly. There are grounds for these concerns, but at least with respect to the federal courts of this circuit the concerns are exaggerated. Most of the district judges and other frontline federal judicial officers in this circuit exercise firm control over the conduct of litigation in a generally successful effort to prevent litigation from getting out of hand in point of delay or expense, or from being degraded by "junk science," appeals to prejudice, runaway jury verdicts, and other justly reprobated abuses of the legal process. In this case a disappointed personal-injury plaintiff argues that the district judge exercised too firm a control over the proceedings. Let us see.

In the 1950s the Lorillard tobacco company sold Kent cigarettes with a filter that contained crocidolite asbestos, the most toxic form of asbestos. (Chrysotile asbestos, the most common form of asbestos, is much less toxic.) This was the famous "micronite" filter, one of those forgotten 1950s icons like 3-D movie glasses and chicken a la king. The filter had been manufactured by Hollingsworth & Vose. Norman Braun smoked these cigarettes and many years later developed mesothelioma, a form of cancer that is most commonly caused by exposure to crocidolite asbestos. He died of the disease at the age of 63 during the course of this suit, a diversity suit that seeks to affix tort liability on Lorillard and Hollingsworth & Vose by means of the common law doctrines of strict products liability, negligence, and recklessness. The applicable substantive law is that of Pennsylvania but nothing turns on this; the only issues raised by the appeal are procedural.

The case went to trial. The main defense was that the asbestos fibers in the micronite filter would not have been released from the filter in the course of smoking and therefore could not have caused Mr. Braun's mesothelioma. Not all cases of mesothelioma are due to exposure to crocidolite asbestos, though most are. And even if Braun's case was due to such exposure, he may have been exposed to crocidolite asbestos from sources other than the Kent micronite filter.

The trial lasted three weeks and featured an impressive parade of expert witnesses. The jury deliberated, and returned a verdict for the defendants. The plaintiff's appeal does not question the sufficiency of the evidence to support the verdict but does challenge a number of the district judge's evidentiary rulings. It should be unnecessary to point out that the verdict was not a determination that cigarettes are harmless to human health or even that Kent's micronite filter was incapable of causing mesothelioma. It was merely a determination that the plaintiff had failed to prove that the filter had caused her decedent's mesothelioma.

The most consequential of the evidentiary rulings challenged by the plaintiff's appeal is the exclusion of testimony by David Schwartz, an expert witness called by the plaintiff, that lung tissue obtained in the autopsy of Mr. Braun contained crocidolite asbestos fibers. Dr. Schwartz is a professor of biochemistry and the president of a consulting firm that does environmental testing with particular emphasis on testing for the presence of asbestos, including crocidolite asbestos. He directed his lab assistant to subject a section of Braun's lung tissue to "high temperature ashing," in which the substance being tested for the presence of asbestos fibers is, in effect, boiled away by the application of heat, leaving the asbestos (if any), since asbestos is highly heat resistant. The assistant did a spectrographic analysis of the residue. According to his oral report to Schwartz, the analysis revealed the presence of crocidolite asbestos fibers.

This was the only evidence that such fibers were present in Braun's lungs, although there was expert testimony that the absence of such fibers when he died was not inconsistent with their having been there earlier and caused Braun's mesothelioma. The judge would not let Schwartz's testimony concerning the presence of the fibers go to the jury. Although Schwartz is an acknowledged expert on the testing of building materials for asbestos, he had never before conducted a test on human or animal tissue. Nor, so far as appears, has high temperature ashing ever been used by anyone else to test for the presence of asbestos fibers in tissue. The standard methods of testing for such presence go by the names of "bleach digestion" and "low temperature plasma ashing." The plaintiff's lawyers had hired recognized experts in the detection of asbestos in tissue, and those experts had conducted tests of tissue from Braun's lungs using the standard methods, and had found nothing. The lawyers then turned to Dr. Schwartz and asked him to do something different, and he obliged. At his deposition, and later at the voir dire to determine whether he should be allowed to give opinion evidence, he testified that high temperature ashing is as usable on tissue as on bricks. He acknowledged the possibility that the method might "break fibers and hence spuriously increase their number," and, more serious still, might alter the chemistry of the sample. The altered chemistry might affect the spectrographic profile of any fibers found in the residue -- might alter the "appearance" of the fibers so that it was impossible to tell whether they were crocidolite fibers or some other type of asbestos fiber. But he testified that his method was far more likely to produce a false negative than a false positive, though in fact it was the only method used on Mr. Braun's lung tissues that produced a positive test result.

The plaintiff complains that the district judge excluded Dr. Schwartz's evidence merely because he did not use one of the generally accepted methods of testing for the presence of crocidolite asbestos in human tissues. The Supreme Court held in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993), that the opinion evidence of reputable scientists is admissible in evidence in a federal trial even if the particular methods they used in arriving at their opinion are not yet accepted as canonical in their branch of the scientific community. But that is only part of the holding of Daubert. The other part is that the district court is responsible for making sure that when scientists testify in court they adhere to the same standards of intellectual rigor that are demanded in their professional work. Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996); Bammerlin v. Navistar Int'l Transportation Corp., 30 F.3d 898, 901 (7th Cir. 1994). The scientific witness who decides to depart from the canonical methods must have grounds for doing so that are consistent with the methods and usages of his scientific community.

The district judge did remark at one point that Daubert requires that the expert's method be one "customarily relied upon by the relevant scientific community," which is incorrect. But she did not rest her decision to exclude his testimony on that ground. Her ground was that Schwartz had testified "that he really didn't have any knowledge of the methodology that should be employed, and he still doesn't have any information regarding the methodology that should be employed with respect to lung tissue. It seems to me that this witness knows absolutely nothing about analyzing lung tissue and [for?] asbestos fibers." The plaintiffs' lawyers committed a serious violation of 7th Cir. R. 30(c) by falsely certifying that all materials required by Rule 30 to be included in the appellant's appendix had been included, while leaving out the part of the trial transcript that contains the principal ground for Judge Manning's ruling that Dr. Schwartz could not give an opinion on the presence of asbestos fibers in Braun's lung tissues. By including in their appendix only the passage in which the judge misdescribed the holding of Daubert, the lawyers gave the impression that this misdescription was the entire basis for the judge's ruling. A false Rule 30(c) certification is grounds for dismissing an appeal, Mortell v. Mortell Co., 887 F.2d 1322, 1327 (7th Cir. 1989); Urso v. United States, 72 F.3d 59, 61-62 (7th Cir. 1995), though it will not be necessary for us to decide whether it would be an appropriate sanction in this case.

Dr. Schwartz had never tested human or animal tissues for the presence of asbestos fibers (or, so far as appears, for anything else) before being hired by the plaintiff's lawyer. And he did not bother to familiarize himself with the standard methods for conducting such tests or to consult with scientists who are the experts in analyzing tissue. It was after he acknowledged this surprising lack of preparation, and the fact that the suggestion for using his method on human tissues had come from lawyers rather than anyone (himself included) in the scientific community, and that he spends 99.9 percent of his time engaged in administrative and marketing activities for his consulting firm (we suppose he meant of his consulting time, since he is also a professor), and that he could not name anyone who has done work analyzing tissues for the presence of asbestos fibers, that Judge Manning, reversing her earlier ruling, decided to exclude his testimony concerning the presence of crocidolite asbestos fibers in Braun's lungs. Suppose that a scientist engaged in a research project rather than in a lawsuit had come to Schwartz with a section of lung tissue that he wanted tested for asbestos fibers. Would Schwartz, having no previous experience with the testing of tissue, have offered to use the method that he uses for testing ceiling tiles, without first acquainting himself with the accepted methods for testing human tissues and consulting with the users of those methods for advice on whether his method was as good (or better), or, contrariwise, might produce misleading spectrographic images?

Nowhere in Daubert did the Court suggest that failure to adhere to the customary methods for conducting a particular kind of scientific inquiry is irrelevant to the admissibility of a scientist's testimony. On the contrary, the Court made clear that it is relevant. 113 S. Ct. at 2796-97. A judge or jury is not equipped to evaluate scientific innovations. If, therefore, an expert proposes to depart from the generally accepted methodology of his field and embark upon a sea of scientific uncertainty, the court may appropriately insist that he ground his departure in demonstrable and scrupulous adherence to the scientist's creed of meticulous and objective inquiry. To forsake the accepted methods without even inquiring why they are the accepted methods -- in this case, why specialists in testing human ...


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