United States District Court, N.D. Illinois, Eastern Division
MARILYN F. QUIRIN, Special Representative of the Estate of RONALD J. QUIRIN, Deceased, Plaintiff,
LORILLARD TOBACCO COMPANY, et al., Defendants.
MEMORANDUM OPINION & ORDER
JOAN B. GOTTSCHALL, District Judge.
Plaintiff Marilyn F. Quirin, special representative of the estate of Ronald J. Quirin ("Quirin"), has sued defendants Lorillard Tobacco Company ("Lorillard") and Hollingsworth & Vose Company ("H&V") on a negligence theory, alleging that Mr. Quirin's mesothelioma was caused by his exposure to asbestos while smoking Kent cigarettes, which, during the 1950s, were manufactured with a "Micronite" filter that contained asbestos (hereinafter "original Kents"). Now before the court are two motions brought pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993): (1) Quirin's "Motion to Preclude Reliance by Defendants' Expert Witnesses on Scientifically Unreliable Testing Performed by Lorillard in the 1950s" and (2) Lorillard and H&V's "Motion to Exclude the Expert Testimony of John Pauly, Ph.D." The motions are granted in part and denied in part.
I. LEGAL STANDARD
Under Rule 702, an expert witness, "qualified... by knowledge, skill, experience, training, or education, " may testify if: "(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." Fed.R.Evid. 702.
A trial judge must ensure "that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 597. "To do so, the district court must ascertain whether the expert is qualified, whether his or her methodology is scientifically reliable, and whether the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.'" Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893 (7th Cir. 2011) (quoting Fed.R.Evid. 702). The court must prevent an expert from offering legal conclusions, as "experts cannot make those." See United States v. Diekhoff, 535 F.3d 611, 619 (7th Cir. 2008).
"The reliability of the expert's principles and methods can be examined by looking at factors such as (1) whether the scientific theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether a particular technique has a known potential rate of error; and (4) whether the theory or technique is generally accepted in the relevant scientific community." Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013) (citing Daubert, 509 U.S. at 593-94). The Seventh Circuit has explained that the judge's concern "is not the ultimate correctness of the expert's conclusions. Instead, it is the soundness and care with which the expert arrived at her opinion: the inquiry must focus... solely on principles and methodology, not on the conclusions they generate.'" Id. (quoting Daubert, 509 U.S. at 595). If the expert's principles and methodology reflect reliable scientific practice, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596.
A. Opinions Based on Testing of Original Kent Cigarettes in the 1950s
Quirin seeks to preclude Lorillard and H&V's expert witnesses (Dr. Allen Gibbs, Dr. Williams Hinds, and Dr. Kevin Reinert) from relying on testing performed by Lorillard and several contractors in the 1950s in drawing conclusions regarding the release of asbestos fibers from original Kent cigarettes. Quirin does not challenge the three experts' qualifications or their testimony in its entirety, only the conclusions that are based on Lorillard's testing. The testing in question was performed by (1) Dr. John Killian, (2) Dr. David Kendall, (3) the Laboratory of Industrial Hygiene, (4) Dr. Ernest Fullam, and (5) the Armour Research Foundation.
Lorillard and H&V first respond generally by arguing that documents describing the testing are admissible as business records and may be otherwise relevant to the case. Although the court acknowledges that possibility, it has nothing to do with the permissible scope of expert testimony or whether the conclusions the defendants' experts drew from the documents are sound.
Lorillard and H&V further argue that testimony based on the studies should be admitted because the people who conducted the testing are now unavailable to testify, no freshly-manufactured or properly preserved original Kents are available to test today, no additional documents exist from the studies other than those available to the experts, and the studies are part of the record that an expert would be expected to review. Again, none of these arguments go to the scientific validity of the tests themselves. Nor are they relevant to whether the conclusions the experts drew from the studies are reliable.
The court reviews, in turn, each set of tests and the expert reports discussing the testing.
Two of Lorillard and H&V's experts, Dr. Hinds and Dr. Reinert, summarize in their expert reports testing performed for Lorillard by Dr. John Killian. Dr. Hinds states in his report:
During the period 1951 to 1955 Killian Research Laboratories, Inc., under contract to P. Lorillard Co., tested Kent filter cigarettes, primarily for filter efficiency. In November 1951 they measured fiber release into the tar from 200 regular and 200 filtered Kents. They ashed the tar and analyzed the residue for silica and found no difference between the filtered and non-filtered cigarettes and no measureable quantity of asbestos, a silicate, in either. Lorillard repeated this experiment in its laboratories by testing 100 Kent cigarettes and found no evidence of fiber release. To be sure, Killian repeated the experiments with 1000 of each type of cigarette and found 75 ug of silicate in the tar from regular cigarettes and no silicate in the tar from Kent filter cigarettes.
(Defs.' Expert Reports Ex. 3 (Hinds Report) 3, ECF No. 84-3.) Dr. Reinert states in his report:
In November 1951, P. Lorillard used standard mechanical smoking equipment to test a sample size of 100 Kent cigarettes and observed no measurable quantity of asbestos in the smoke. In addition, using a gravimetric method, Dr. Killian in November 1951 found no evidence that asbestos was released in the smoke from two tests performed first on 200 Kent cigarettes and later on 1000 Kent cigarettes, for a total of 1, 200 Kent cigarettes.
(Def. Lorillard's Expert Report Ex. 5 (Reinert Report) 3, ECF No. 84-5.)
The existing records of the testing performed by Dr. Killian in 1951 consist of two handwritten notes from November 1951 written by Lorillard executive Dr. H. B. Parmele, memorializing phone conversations with Dr. Killian. The notes are similar in content to the experts' statements above. They mention "silica, " not asbestos. (Pl.'s Mot. to Exclude Ex. O (Nov. 9, 1951 Notes), ECF No. 129-16.) Dr. Reinert saw no reports or notes authored by Dr. Killian himself, only the phone messages. (Pl.'s Mot. to Exclude Ex. L (Reinert Dep.) 14:1-19:25, ECF No. 129-13.)
The court cannot determine from Dr. Parmele's notes how the cigarettes tested by Dr. Killian were smoked or how the presence or absence of silica was measured by Dr. Killian. Given that Dr. Killian's data and reports are unavailable, it was impossible for Dr. Hinds and Dr. Reinert to verify the reliability of his research or determine whether he used accepted or replicable techniques. Yet, in summarizing Dr. Killian's results, the expert reports do not mention the fact that Dr. Killian's actual test results are unavailable, nor do they indicate that this absence of information makes evaluating Dr. Killian's tests in any way problematic. The reports simply repeat the content of Dr. Parmele's notes. The experts' basis for accepting Dr. Parmele's notes as valid and reliable is unclear. Furthermore, in Lorillard and H&V's response to the motion to exclude this evidence, the only argument raised in support of the reliability of Dr. Killian's research is that he "tested 1000 cigarettes." (Defs.' Resp. to Mot. to Exclude 9, ECF No. 164.)
"The goal of Daubert is to assure that experts employ the same intellectual rigor' in their courtroom testimony as would be employed by an expert in the relevant field." Jenkins v. Bartlett, 487 F.3d 482, 489 (7th Cir. 2007) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). As the Third Circuit has stated, where "the data underlying the expert's opinion are so unreliable that no reasonable expert could base an opinion on them, the opinion resting on that data must be excluded." In re TMI Litig., 193 F.3d 613, 697 (3d Cir. 1999). The burden of showing that an expert's testimony is reliable lies with Lorillard and H&V, as the proponents of the evidence. Insofar as Lorillard and H&V's experts' opinions are based on Dr. Killian's tests, it is impossible to evaluate whether the methodology Dr. Killian used was reliable in the absence of any information about how the ...