C.W. v. Textron, Inc.

• Decision Date: 26 August 2015
• Docket Number: No. 14–3448.,14–3448.
• Citation: 807 F.3d 827
• Parties: C.W. and E.W., by Guardians and Next Friends Adele A. WOOD and Jason A. Wood, Plaintiffs–Appellants, v. TEXTRON, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

807 F.3d 827

C.W. and E.W., by Guardians and Next Friends Adele A. WOOD and Jason A. Wood, Plaintiffs–Appellants,

v.TEXTRON, INC., Defendant–Appellee.

No. 14–3448.

United States Court of Appeals, Seventh Circuit.

Argued May 18, 2015.

Decided Aug. 26, 2015.

Glenn D. Bowman, Attorney, Katz & Korin, PC, Indianapolis, IN, for Plaintiffs–Appellants.

Frank J. Deveau, Attorney, Bradley R. Sugarman, Attorney, Taft Stettinius & Hollister LLP, Indianapolis, IN, for Defendant–Appellee.

Before KANNE and SYKES, Circuit Judges, and Ellis, District Judge.^*

KANNE, Circuit Judge.

Government regulators and scientists agree: exposure to vinyl chloride poses serious health risks to humans. Vinyl chloride is a known carcinogen, mutagen, and genotoxin.¹ But in what quantity and for how long must a human—in this case, two infant children—be exposed to vinyl chloride before those health risks materialize? The experts for C.W. and E.W., the minor children of Jason and Adele Wood, attempted to answer these difficult questions in this toxic-tort case.

Unfortunately for the Woods, their attempts fell short. The district court excluded each of the appellants' experts, observing they did not use reliable bases to support their opinions. Having excluded the appellants' experts, the district court then granted summary judgment in favor of Textron. It found that, without the experts' opinions, the appellants could not prove general and specific causation—required elements under Indiana law in a toxic-tort case. Although we disagree with the district court's rationale regarding causation, we nevertheless affirm.

I. BACKGROUND

A. Preliminary History

Textron began operations at its fastener manufacturing plant in Rochester, Indiana, in 1954. The Torx plant, as it came to be known, proved to be successful; it remained in operation through 2006. During its operations, however, the plant released vinyl chloride—a toxic gas. That vinyl chloride eventually seeped into the ground water, contaminating nearby residential wells.

One of those wells belonged to the Woods. Both Textron and the Indiana Department of Environmental Management performed testing on the Woods' well. Their tests revealed varying levels of vinyl chloride—from 5.00 and 8.40 parts per billion to 8.60 and 9.00 parts per billion.²

Once the Woods learned that this toxic substance had contaminated their well, they understandably left immediately. Jason and Adele believed the health risks to their children were simply too high to remain at the Rochester house. But in the Woods' opinion, there was more at stake than the future risk of cancer ; there was the present risk of illness. While living at the Rochester house, C.W. and E.W. experienced gastrointestinal issues (vomiting, bloody stools), immunological issues, and neurological issues.

The Woods adopted their son, C.W., when he was eleven weeks old. He came home on May 11, 2007. The Woods adopted their daughter, E.W., when she was eleven days old. She came home on April 25, 2008. Both children were younger than two years old when the entire family left the Rochester house in November 2008. Their illnesses coincided with their time spent in that house.

After the Woods moved from that house, C.W.'s and E.W.'s health improved. But the parents' concerns did not abate. Fearful that vinyl chloride caused C.W.'s and E.W.'s conditions (and mindful of the known cancer risks), Jason and Adele sued Textron on behalf of their children in Fulton County Circuit Court. There, they advanced a three-count complaint, alleging negligence, negligence per se, and negligent infliction of emotional distress.³ The crux of these Indiana tort-law claims was that Textron exposed C.W. and E.W. to vinyl chloride, which caused their illnesses and substantially increased their risk of cancer and other adverse health effects. Just one week after the filing of the complaint, Textron successfully removed the case to federal court. 28 U.S.C. §§ 1332, 1441, 1446. The appellants then filed a Second Amended Complaint, this time in federal court, to add a fourth count for willful and wanton misconduct.

The case proceeded through discovery and the marshaling of experts until, nearly four years after the appellants filed their original complaint, Textron filed a motion in limine to exclude the appellants' three expert witnesses. As we noted above, that motion was successful; the district court granted it in its entirety. The district court then found that, without the experts, the appellants could not prove general or specific causation. It granted summary judgment in favor of Textron on all of the appellants' claims.

Before we turn our attention to the experts, we note that there are a number of contested facts that are not at issue in this appeal. For example, this appeal is not about whether, or with what frequency, Jason and Adele used bottled instead of tap water to make formula for their infant children. Nor is this appeal about whether Jason and Adele's reverse-osmosis-water-filtration system sufficiently guarded the children against unacceptable levels of vinyl chloride.

Instead, this appeal is about whether the district court abused its discretion in excluding the appellants' experts based on the reliability of their methodology, and if it did not abuse its discretion, whether we should affirm its grant of summary judgment in favor of Textron. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.").

B. The Experts

Because our jurisdiction is based on diversity of citizenship, we apply federal procedural law and state substantive law. Allen v. Cedar Real Estate Grp., LLP, 236 F.3d 374, 380 (7th Cir.2001) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ). The parties do not dispute that Indiana substantive law applies here. To prove their toxic-tort claims under Indiana law, the appellants needed to present evidence of general and specific causation. 7–Eleven, Inc. v. Bowens, 857 N.E.2d 382, 389 (Ind.Ct.App.2006). General causation examines whether the substance—in this case, vinyl chloride—"had the capacity to cause the harm alleged[.]" Id. (emphasis added). Specific causation, by contrast, examines whether the substance did, in fact, cause the harm alleged. Id. (emphasis added). To satisfy this bifurcated burden, the plaintiffs offered the testimony of three experts: (1) Dr. James G. Dahlgren; (2) Dr. Vera S. Byers; and (3) Dr. Jill E. Ryer–Powder.

Both parties agree that these experts are well-qualified. So we can set that issue to the side. The dispute before us concerns the reliability of the methodology they employed in generating their expert opinions. The following section highlights their methodology as well as the district court's rationale in rejecting it. We begin with Dr. Dahlgren.

1. Dr. James G. Dahlgren

Dr. Dahlgren offered opinions on both general and specific causation, testifying that, in his judgment, vinyl chloridecan cause and did cause the children's illnesses. He also opined that it is highly likely that both children will develop cancer at some point in the future. He based these opinions on a differential etiology⁴ and the fact that levels of vinyl chloride detected in the appellants' water supply exceeded the regulatory levels set by the United States Environmental Protection Agency ("EPA") and the Indiana Department of Environmental Management, among other government agencies. Dr. Dahlgren also based his opinions on timing, or in his words, "temporality." In his view, the fact that the appellants' symptoms began after exposure to vinyl chloride and lessened after removal helps demonstrate that vinyl chloride is the cause.

As for Dr. Dahlgren's differential etiology, it is largely based on the findings (or lack thereof) of other doctors who have examined C.W. and E.W. To be sure, Dr. Dahlgren conducted physical examinations of both C.W. and E.W. He also reviewed their medical records. But his differential etiology is silent on these matters. According to Dr. Dahlgren, "[t]he scientific studies ... demonstrate that damage to the immune system and the nervous system are known to be caused by [vinyl chloride] exposure. The thorough evaluations by the childrens' [sic ] doctors have not found an alternative explanation ...." (emphasis added).

Thus, to accept Dr. Dahlgren's approach to differential etiology, one must accept both the scientific studies upon which Dr. Dahlgren relied and the care taken by the doctors who examined C.W. and E.W. One must also accept that vinyl chloride should be ruled in as a possible cause at all—a point we address below.

The district court found Dr. Dahlgren's methodology to be unreliable. Citing Cunningham v. Masterwear Corp., 569 F.3d 673, 674–75 (7th Cir.2009), it first found that Dr. Dahlgren could not rely on regulatory exceedances to demonstrate causation. Second, the district court found that Dr. Dahlgren failed to connect the dots between the scientific studies that he analyzed and the opinions that he offered. This is a Joiner problem. In Gen. Elec. v. Joiner, 522 U.S. 136, 138, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), the Supreme Court decided to apply the abuse of discretion standard in reviewing the admission or exclusion of expert testimony. Affirming the district court's exclusion of the experts there, the Court held that "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Id. at 146, 118 S.Ct. 512 (citations omitted).

In the case before us, the district judge found fault in the studies that Dr. Dahlgren relied upon. "These articles ... fail to establish that [vinyl...