Tamraz v. Lincoln Electric Co.

• Decision Date: 08 September 2010
• Docket Number: Nos. 08-4015, 08-4016.,s. 08-4015, 08-4016.
• Parties: Jeff TAMRAZ; Terry Tamraz, Plaintiffs-Appellees, v. LINCOLN ELECTRIC COMPANY; Hobart Brothers Company; ESAB Group, Inc. (08-4015); TDY Industries, Inc. (08-4016), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

620 F.3d 665

Jeff TAMRAZ; Terry Tamraz, Plaintiffs-Appellees,

v.LINCOLN ELECTRIC COMPANY; Hobart Brothers Company; ESAB Group, Inc. (08-4015); TDY Industries, Inc. (08-4016), Defendants-Appellants.

Nos. 08-4015, 08-4016.

United States Court of Appeals,Sixth Circuit.

Argued: Nov. 18, 2009.

Decided and Filed: Sept. 8, 2010.

Rehearing and Rehearing En Banc Denied Nov. 9, 2010. ^*

ARGUED: Stephen J. Harburg, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, D.C., for Appellants. Paul Michael De Marco, Waite, Schneider, Bayless & Chesley Co., L.P.A., Cincinnati, Ohio, for Appellees. ON BRIEF: Stephen J. Harburg, John H. Beisner, Jessica D. Miller, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, D.C., Jonathan D. Hacker, O'Melveny & Myers LLP, Washington, D.C., Irene C. Keyse-Walker, Joseph J. Morford, Tucker Ellis & West LLP, Cleveland, Ohio, for Appellants. John R. Climaco, John A. Peca, Jr., Dawn M. Chmielewski, Patricia M. Ritzert, Climaco, Wilcox, Peca, Tarantino & Garofoli Co., LPA, Cleveland, Ohio, Eric C. Wiedemer, Kelley & Ferraro LLP, Cleveland, Ohio, Elizabeth J. Cabraser, Robert Nelson, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, California, for Appellees.

Before MARTIN and SUTTON, Circuit Judges; REEVES, District Judge. ^**

SUTTON, J., delivered the opinion of the court, in which REEVES, D.J., joined. MARTIN, J. (pp. 678-85), delivered a separate dissenting opinion.

OPINION

SUTTON, Circuit Judge.

At issue in this case is the often-elusive line between admissible opinion and inadmissible speculation under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Several manufacturers of welding supplies appeal a $20.5 million jury verdict based on a doctor's testimony that their products triggered “manganese-induced parkinsonism” in a welder who used them. Because the district court exceeded its discretion in allowing this testimony, we reverse and remand for a new trial.

I.

From roughly 1979 to 2004, Jeff Tamraz worked as an independent-contracting welder in California. Beginning in about 2001, he began to suffer symptoms of Parkinsonism: tremors, drooling, a “masked face” and impaired coordination on his right side. JA 800-03.

In September 2004, Tamraz and his wife Terry sued several manufacturers of welding supplies, alleging that the fumes from their products had caused his condition and that labels on the products had failed to warn of the danger. The case was consolidated with ongoing multidistrict litigation in the Northern District of Ohio. In re: Welding Fume Prods. Liab. Litig., No. 03-cv-17000, MDL No. 1535. The district court selected Tamraz's case for one of several bellwether trials to guide the resolution of the other cases. No. 03-cv-17000, R.2043 (June 6, 2007).

After summary judgment thinned the claims and defendants, Tamraz's case went to trial on three theories of relief (strict-liability failure to warn, negligent failure to warn and fraud by concealment) against five defendants (The Lincoln Electric Company, Hobart Brothers Company, The ESAB Group, Inc., BOC Group, Inc. and TDY Industries, Inc.). The jury found for Tamraz and against all five defendants on the claims of strict liability and negligent failure to warn, but rejected his claim of fraud by concealment. It awarded Jeff Tamraz $17.5 million in compensatory damages and Terry Tamraz $3 million for loss of consortium. The defendants all filed motions to overturn the verdict under Rule 50 of the Federal Rules of Civil Procedure. The district court denied the challenges of every defendant save BOC Group, against whom the court found insufficient evidence to sustain the verdict. Lincoln Electric, the ESAB Group, Hobart Brothers and TDY Industries appealed.

II.

The manufacturers argue that the district court should not have admitted Dr. Walter Carlini's opinion that the manufacturers' products triggered “manganese-induced parkinsonism” in Tamraz, claiming it did not satisfy the requirements of Rule 702 of the Federal Rules of Evidence. We agree.

A.

The relevant law. Rule 702 says:

If scientific, technical, or other specialized knowledge will assist the trier of fact to ... determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702. The rule gives district courts a “gatekeeping role” in screening the reliability of expert testimony, Daubert, 509 U.S. at 597, 113 S.Ct. 2786, and we review their decisions for abuse of discretion, Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

The relevant science. Doctors now recognize that what James Parkinson described nearly two centuries ago as “the shaking palsy” makes up a family of movement disorders encompassing Parkinson's Disease along with an assortment of other disorders. James Parkinson, An Essay on the Shaking Palsy (1817), reprinted in 14 J. Neuropsychiatry & Clin. Neurosci. 223 (2002); see JA 130-31. The disorders have different causes, and they have different but overlapping symptoms, including tremors, instability and slowness and rigidity of movement. JA 130. Diagnosing one type of parkinsonism over another is no easy task. JA 140, 553-56.

Two forms of parkinsonism-Parkinson's Disease and manganism-matter here. Parkinson's Disease is the most common type, afflicting more than a million people in the United States alone. JA 131, 607. The typical individual with Parkinson's Disease suffers from a gradual loss of motor function and a tremor when at rest, both usually developing on one side of the body, caused by deterioration of neurons in a part of the brain called (bear with us) the substantia nigra pars compacta. JA 132, 135-36. The causes of Parkinson's Disease range from the obscure to the unknown. As a result, doctors and scientists often define Parkinson's Disease by its undetermined cause-“idiopathic Parkinson's Disease”-“idiopathic” being another way of saying the medical community does not know why a given individual has the disease. In other cases, they use a name other than Parkinson's Disease-such as postencephalitic parkinsonism, drug-induced parkinsonism, or toxin-induced parkinsonism-when they know the cause. JA 131, 150. Over time, as scientists have discovered more genetic and other causes for Parkinson's Disease, the medical profession has defined more subclassifications of the disease and has had to rely less frequently on “idiopathic” designations. JA 130-32.

Manganism is a form of parkinsonism defined by its cause: overexposure to manganese, a hard and brittle element that resembles iron but is not magnetic. The symptoms of manganism overlap with Parkinson's Disease but include an action tremor instead of a rest tremor, symmetry of symptoms and a distinct gait (“cock walk”). JA 584, 871, 1002-05. The typical manganism patient suffers neuron deterioration in a different part of the brain from the typical Parkinson's Disease patient-medically speaking, the globus pallidus and the substantia nigra pars reticulata, not the substantia nigra pars compacta-and therapies used to treat Parkinson's Disease often do not work with manganism. JA 134-36, 564-67.

The diagnosis of Jeff Tamraz. Every doctor to examine Jeff Tamraz has reached a different conclusion about where his case fits into this puzzle. No one disputes that he suffers from parkinsonism; the question is what kind and from what cause. The first neurologist to see Tamraz, Dr. Michael Siegel, initially diagnosed Tamraz with “an unusual form of Parkinson's disease due to manganese poisoning,” JA 805, but then became less sure about the role of manganese after he consulted medical literature on the subject, JA 808-09. He eventually concluded that Tamraz's condition is closer to Parkinson's Disease than to manganism: Tamraz had a rest tremor, asymmetry of symptoms and no “cock walk.” JA 809-11, 816-19. Although he could not rule out manganese as the cause of the illness, JA 812, Dr. Siegel believed Tamraz's parkinsonism likely resulted from “factors other than exposure to manganese,” JA 817.

Tamraz's second neurologist, Dr. Carlini, the witness at issue here, concluded that Tamraz suffers from “manganese-induced parkinsonism,” JA 615, but not in the sense of a manifestation of manganism, as that phrase is sometimes used, see JA 600-01. He believed that manganese exposure caused something akin to Parkinson's Disease in Tamraz. JA 600. He found many of the same symptoms that led Dr. Siegel to suspect Parkinson's Disease rather than manganism, JA 616, 619-21, but he noted that scientists recently had discovered genetic or environmental causes for many forms of Parkinson's Disease formerly considered idiopathic, JA 599, 619, and discussed literature raising the possibility that genetics and environmental factors may cause a large fraction of Parkinson's Disease cases. JA 599, 601-02. Dr. Carlini hypothesized that Tamraz might have a genetic predisposition to Parkinson's Disease, and that manganese in lower levels than necessary to cause manganism might nevertheless “trigger” the symptoms of Parkinson's Disease, like “the straw that broke the camel's back.” JA 598-99. He did not believe Tamraz has Parkinson's Disease in the strict sense-that manganese in his view caused the disease meant by definition it could not be “idiopathic” Parkinson's Disease-but believed it to be otherwise identical to Parkinson's Disease. JA 599-600.

In addition to Tamraz's treating physicians, the plaintiffs and defendants each hired a doctor to examine Tamraz. Dr. Anthony Lang, the defendants' doctor, testified that ...