Kannankeril v. Terminix Intern., Inc.
| Decision Date | 12 December 1997 |
| Docket Number | No. 96-5818,96-5818 |
| Citation | 128 F.3d 802 |
| Parties | 28 Envtl. L. Rep. 20,219, 47 Fed. R. Evid. Serv. 1376, Prod.Liab.Rep. (CCH) P 15,089 Charles KANNANKERIL; Mary Kannankeril, individually and as next friend of Charlene and Crystal Kannankeril; Charlene Kannankeril; Crystal Kannankeril v. TERMINIX INTERNATIONAL, INC.; TM Special Partners, Inc.; Terminix MGP, Inc., General Partners of the Terminix International Company Limited Partnership; Terminix International; Dow Chemical U.S.A.; Whitmire Research Laboratories, Inc.; Ford Chemical & Service, Inc.; Dennis Buttimore, c/o Terminix International; The Terminix International Company Limited Partnership Mary Kannankeril, Individually and as Next Friend of Charlene Kannankeril, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Evan T. Lawson (argued), Christopher N. Cook, Lawson & Weitzen, Boston, MA, for Appellants.
Kevin E. Wolff (argued), Robert W. Muilenburg, McElroy, Deutsch & Mulvaney, Morristown, NJ, for Appellee Terminix International.
Before: SLOVITER, Chief Judge, ROTH and MICHEL, 1 Circuit Judges.
The Kannankerils, Dr. Mary Kannankeril, her husband, Charles, and their children, Charlene and Crystal, sued a pest exterminator, the Terminix International Company L.P. ("Terminix"), seeking damages for injuries allegedly arising out of the application of pesticides to their residence. The district court found the opinion of Dr. Benjamin Gerson, the medical expert of Dr. Mary Kannankeril, to be unreliable and unsupported by facts. Having excluded Dr. Gerson's opinion, the district court held that Dr. Kannankeril had failed to produce any evidence that her cognitive impairment had been caused by exposure to pesticides applied by Terminix. The court granted summary judgment in favor of Terminix. The admissibility of Dr. Gerson's opinion is the sole issue on which the Kannankerils have appealed. They argue that the district court erroneously excluded the testimony of Dr. Gerson.
We conclude that the district court improperly exercised its gatekeeping role by excluding Dr. Gerson's testimony.
Accordingly, we will vacate that portion of the order of the district court, granting summary judgment against Dr. Mary Kannankeril on this point, and we will remand this case for further proceedings consistent with this opinion. 2
The Kannankerils entered into a one-year contract with Terminix on May 30, 1989, for the control of carpenter ants through the application of pesticides to certain interior portions and the outside deck of the Kannankerils' residence. From May 31, 1989, through October 5, 1990, Terminix treated the Kannankeril residence on at least twenty occasions at intervals ranging from once a month to twice in a three day period. Terminix applied pesticides, containing Dursban, until the Kannankerils canceled the service on October 5, 1990.
Dursban, the active ingredient in certain pesticides used by Terminix, is a formulation of chlorpyrifos, an organophosphate poison. The organophosphates kill insects by inhibiting the normal breakdown of acetylcholine, which functions as a neurotransmitter in several life forms, including humans. The Kannankerils argue that despite the well-known chronic effects of chlorpyrifos, Dursban was sprayed excessively and improperly in their home. For example, Dursban was sprayed on the cooking range, around the dishwasher, and on the baseboard heater. Dursban was also sprayed in cupboards where pots and pans were stored. Terminix, however, claims that any liquid pesticide that was applied consisted almost entirely of water, with minute concentrations of liquid pesticide added to make the final active solution.
The Kannankerils' suit against Terminix involved alleged injury to Dr. Mary Kannankeril, a former Medical Director of Psychiatric Emergency Services at Saint Mary's Hospital in Passaic, New Jersey. Dr. Kannankeril claims to suffer wide-ranging physiological and cognitive symptoms from exposure to the pesticides, including Dursban, applied by Terminix. 3 The symptoms first appeared in August 1990, over one year after Terminix began its service. The Kannankerils did not relate Dr. Kannankeril's symptoms with Terminix's ongoing pesticide applications until October 1990. After the entire family developed a rash, the Kannankerils began to suspect Dursban as the cause of their problems. When the Kannankerils complained of a strong odor in their home after the last application, Terminix sent Service Master to clean the Kannankerils' residence. In July 1991, nine months after the last application of pesticide, the Kannankerils requested that the New Jersey Department of Environmental Protection ("DEP") test their residence for the existence of pesticides. The DEP collected air samples from the residence on July 10, 1991. An analysis of the samples indicated nondetectable levels of pesticides.
Dr. Kannankeril allegedly developed chronic toxicity related to exposure to chlorpyrifos and became sensitized to multiple other chemicals so that further exposure to organophosphates would result in disabling physical problems. As a result of her ill health, she gave up her hospital position in March, 1993, and now sees patients only in an office at home.
Plaintiffs named Dr. Benjamin Gerson, M.D., to testify as a medical expert to establish that exposure to Dursban caused Dr. Kannankeril's injury. 4 Dr. Gerson provided the following opinion:
The temporal relationship and the nature of her complaints lead me to conclude that with reasonable medical certainty, the cause of Dr. Kannankeril's Central Nervous System manifestations of toxicity is exposure to Dursban in 1989 to 1990.
App. at 51. 5 Dr. Gerson is the only medical expert proffered by the Kannankerils on causation and his opinion is limited to the causation of Dr. Kannankeril's cognitive impairment. His findings are based on Dr. Kannankeril's account of her cognitive symptoms and on a report prepared by Dr. Ellen Grober, a neuropsychologist who examined Dr. Kannankeril. Dr. Gerson also relied on a summary report of the times and amounts of Dursban applications to the Kannankeril home as well as on his general experience and readings, general medical knowledge, standard textbooks, and standard references.
A district court's ruling on admissibility of expert testimony is reviewed for abuse of discretion. Government of the Virgin Islands v. Sanes, 57 F.3d 338, 341 (3d Cir.1995); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 749 (3d Cir.1994). To the extent that the district court's ruling turns on interpretation of the Federal Rules of Evidence, our review is plenary. United States v. Velasquez, 64 F.3d 844, 848 (3d Cir.1995); Paoli, 35 F.3d at 749. We review the district court's findings of fact under a clearly erroneous standard. Velasquez, 64 F.3d at 848.
Under the Federal Rules of Evidence, it is the role of the trial judge to act as a "gatekeeper" to ensure that any and all expert testimony or evidence is not only relevant, but also reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 2794-95, 125 L.Ed.2d 469. (1993). The Rules of Evidence embody a strong and undeniable preference for admitting any evidence which has the potential for assisting the trier of fact. See Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 780 (3d Cir.1996). Rule 702, which governs the admissibility of expert testimony, has a liberal policy of admissibility. See Holbrook, 80 F.3d at 780; Paoli, 35 F.3d at 741.
Rule 702 has three major requirements: (1) the proffered witness must be an expert; (2) the expert must testify about matters requiring scientific, technical or specialized knowledge; and (3) the expert's testimony must assist the trier of fact. See Paoli, 35 F.3d at 741-42. The issue of this appeal involves the second requirement of the expert's testimony. In interpreting this second requirement, we have concluded that "an expert's testimony is admissible so long as the process or technique the expert used in formulating the opinion is reliable." Id. at 742 (citing Daubert, 509 U.S. at 589, 113 S.Ct. at 2794-95). In order for the expert testimony to be "reliable," we have required that the testimony be based on the "methods and procedures of science," rather than on "subjective belief or unsupported speculation." Paoli, 35 F.3d at 744. Moreover, Daubert does not set up a test of which opinion has the best foundation, but rather whether any particular opinion is based on valid reasoning and reliable methodology. Admissibility decisions focus on the expert's methods and reasoning; credibility decisions arise after admissibility has been determined. See Paoli, 35 F.3d at 743-46.
There are several factors that a district court should take into account in evaluating whether a particular scientific methodology is reliable. See Paoli, 35 F.3d at 742. 6 Although these factors are neither exhaustive nor applicable in every case, they provide a convenient starting point for analyzing the opinion of Dr. Gerson. Our inquiry focuses on principles and methodology and not on the conclusions they generate. Id. at 744. The analysis of the conclusions themselves is for the trier of fact when the expert is subjected to cross-examination. Id. The Kannankerils needed to demonstrate by a preponderance of evidence only that Dr. Gerson's opinion was based on "good grounds." Id.
The district court refused to admit Dr. Gerson's testimony because of insufficient factual foundation to prove that the cause of Dr. Kannankeril's cognitive impairment was exposure to Dursban. We conclude, however, that Dr. Gerson's opinion meets the requirements for the admission of expert testimony under Rule 702 of the Federal Rules of...
To continue reading
Request your trial
-
Yarchak v. Trek Bicycle Corp.
...confusing determinations of admissibility with issues pertaining to the credibility or weight of an expert's conclusions. See Kannankeril, 128 F.3d at 809 (emphasizing that district court's should take care not to "mistake credibility questions for admissibility questions"). Generally speak......
-
Nield v. Pocatello Health Servs., Inc.
...Inc., 597 F.3d 474, 486 (1st Cir. 2010); McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995); Kannankeril v. Terminix Intern., Inc., 128 F.3d 802, 807 (3d Cir. 1997); Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir. 1999); Johnson v. Arkema, Inc., 685 F.3d 452, 468-69......
-
Nield v. Pocatello Health Servs., Inc.
...Inc., 597 F.3d 474, 486 (1st Cir.2010) ; McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir.1995) ; Kannankeril v. Terminix Intern., Inc., 128 F.3d 802, 807 (3d Cir.1997) ; Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir.1999) ; Johnson v. Arkema, Inc., 685 F.3d 452, 468–69......
-
Soldo v. Sandoz Pharmaceuticals Corp.
...to Aralen." Hoffman, 374 F.Supp. at 862. 93. The Court of Appeals for the Third Circuit's decision in Kannankeril v. Terminix International, Inc., 128 F.3d 802 (3d Cir.1997), is not contrary to the Court's conclusions here. In Kannankeril, the Court did note that "the toxic effects of organ......
-
Presenting Your Expert at Trial and Arbitration
...v. GAF Corp., 999 F.2d 1007 (6th Cir. 1993). 17. The harmful effects of organophosphates. Kannankeril v. Terminix International, Inc., 128 F.3d 802, 809 (3d. Cir. 1997). 18. Sexual abuse. Gier by & Through Gier v. Educational Serv. Unit No. 16, 66 F. 3d 940 (8th Cir. 1995); State v. Cressey......
-
Presenting Your Expert at Trial and Arbitration
...v. GAF Corp., 999 F.2d 1007 (6th Cir. 1993). 17. The harmful effects of organophosphates. Kannankeril v. Terminix International, Inc., 128 F.3d 802, 809 (3d. Cir. 1997). 18. Sexual abuse. Gier by & Through Gier v. Educational Serv. Unit No. 16, 66 F. 3d 940 (8th Cir. 1995); State v. Cressey......
-
Presenting Your Expert at Trial and Arbitration
...v. GAF Corp., 999 F.2d 1007 (6th Cir. 1993). 17. The harmful effects of organophosphates. Kannankeril v. Terminix International, Inc., 128 F.3d 802, 809 (3d. Cir. 1997). 18. Sexual abuse. Gier by & Through Gier v. Educational Serv. Unit No. 16, 66 F. 3d 940 (8th Cir. 1995); State v. Cressey......
-
Presenting Your Expert at Trial and Arbitration
...v. GAF Corp., 999 F.2d 1007 (6th Cir. 1993). 17. The harmful effects of organophosphates. Kannankeril v. Terminix International, Inc., 128 F.3d 802, 809 (3d. Cir. 1997). 18. Sexual abuse. Gier by & Through Gier v. Educational Serv. Unit No. 16, 66 F. 3d 940 (8th Cir. 1995); State v. Cressey......
-
28 APPENDIX U.S.C. § 702 Testimony By Expert Witnesses
...by the Court in Daubert do not neatly apply to expert testimony from a sociologist). See also Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 809 (3d Cir. 1997) (holding that lack of peer review or publication was not dispositive where the expert's opinion was supported by "widely accept......