Downs v. Perstorp Components, Inc.

• Citation: 126 F.Supp.2d 1090
• Decision Date: 27 December 1999
• Docket Number: No. 3:96-CV-597.,3:96-CV-597.
• Parties: Andrew A. DOWNS and Maria Downs, Plaintiffs, v. PERSTORP COMPONENTS, INC. and ICI Americas, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

126 F.Supp.2d 1090

Andrew A. DOWNS and Maria Downs, Plaintiffs, v. PERSTORP COMPONENTS, INC. and ICI Americas, Inc., Defendants.

No. 3:96-CV-597.

United States District Court, E.D. Tennessee at Knoxville.

December 27, 1999.

Carl R. Ogle, Jr., Law Offices of Carl R. Ogle, Jr., Jefferson City, TN, for Andrew A Downs, Maria Downs.

Harry P Ogden Lewis, King, Krieg, Waldrop & Catron, P.C., Knoxville, TN, for Perstorp Components, Inc.

J Randolph Bibb, Jr, Baker, Donelson, Bearman & Caldwell, Nashville, TN, Stephen E Embry, Brown Todd & Heyburn PLLC, Louisville, KY, John W Hays, Brown Todd & Heyburn PLLC, Lexington, KY, for ICI Americas, Inc.

MEMORANDUM AND ORDER

PHILLIPS, United States Magistrate Judge.

An order of reference was entered in this case on September 27, 1999, referring to the undersigned, for consideration and disposition pursuant to 28 U.S.C. § 636(b) and the rules of this court, the motion in limine filed by defendants seeking to exclude the testimony of plaintiff's expert, Kaye H. Kilburn, M.D. [Doc. 36]. The parties were further ordered to appear before the undersigned for a Daubert¹ hearing on October 1, 1999 [Doc. 67]. Previously, defendant ICI Americas, Inc.'s motion for recovery of costs [Doc. 59] had been referred to the undersigned for appropriate disposition [Doc. 61]. A Daubert/evidentiary hearing was held on both of these motions on October 1, 1999, at which time testimony was presented by both plaintiff and this defendant.

I. STATEMENT OF FACTS

On October 11, 1995, Jayne Collyar of Perstorp Components gave dimensions of some freight to JoAnn Holland, an employee of SurfAir, Inc., that Ms. Collyar needed shipped to Perstorp's factory on October 11, 1995. Ms. Collyar needed the freight because the trucker who was going to drive the freight to her had to be down for eight hours because he was out of drive time. The dimensions that Ms. Collyar gave Ms. Holland were wrong, thus making the size of the plane that was chartered by SurfAir to deliver the freight to be the wrong size.

Upon finding that the freight container would not fit on the plane, the Perstorp employee, Jayne Collyar, suggested that the freight be broken down into smaller containers so that a portion of the chemical could get to Perstorp's factory. Ms. Holland spoke to the plaintiff, Andrew Downs, about the problem, and Ms. Holland and Mr. Downs decided that Mr. Downs would purchase containers from Wal-Mart in Jefferson City, Tennessee, and plaintiff would drive to the airport in Knoxville to transfer the product. Plaintiff was concerned about the safety of breaking the seal on the shipment and exposing himself to the chemical because there was a 1-800 number on the freight that he was supposed to call in case of a spill and he was concerned that the material might be classified as hazardous.

During a conversation with Jayne Collyar of Perstorp a short period after her conversation with Mr. Downs, Ms. Holland asked Ms. Collyar what the product was. Ms. Collyar related that the product was named Rubiflex, and Ms. Holland looked in her HazMat book but could not find the name Rubiflex cross-referenced in any way. She relayed this message to Mr. Downs, and he proceeded to transfer the product. Mr. Downs subsequently called Ms. Holland back and said that the transfer was not working. He was spilling more than he was getting into the containers, he had the chemical on him, and he was concerned. He wanted Ms. Holland to make sure it was safe and related to Ms. Holland that his skin was burning somewhat. Ms. Holland called Ms. Collyar once again and relayed Mr. Downs' concerns to Ms. Collyar, and Ms. Collyar stated that Rubiflex would not hurt Mr. Downs. She stated that, "People come in contact with this everyday; they have had it on them from head to toe and it hasn't bothered anyone." Ms. Holland called plaintiff back and told him what Ms. Collyar had said. Mr. Downs related that he was going home to take a shower. Ms. Collyar canceled the charter that day, stating that she would transport it herself [Doc. 16, Affidavit of JoAnn Holland attached].

Plaintiff, Andrew Downs, was employed by Dodson International Air, an air charter company. Plaintiff was originally treated by Dr. William A. Paulsen, a neurologist, who did not find that plaintiff sustained a neurological injury. Plaintiff was then examined by Dr. Kaye H. Kilburn, M.D., who diagnosed the plaintiff with "chemical encephalopathy which includes paresis (paralysis) of the right seventh cranial nerve and hyperesthesia face supplied by the fifth cranial nerve and visual field losses that are worse on the right. Also included is ptosis (eyelid droop) on the right. Body balance, reaction time and recall-short term memory was (sic) also impaired as measured by comparison to predicted values adjusted for his age, education, sex, height, and other factors." Rule 26(a)(2) report of Kaye H. Kilburn, M.D., attached as "Exhibit A" to plaintiff's memorandum in support of its response to motion in limine to exclude testimony of plaintiff's expert, Kaye H. Kilburn, M.D. [Doc. 47].

Dr. Kilburn further states in his report dated July 28, 1998, that these signs of brain damage followed a single exposure to Rubiflex containing (DETA) diethyltoluene diamine, a polyurethane polymer system by contact and inhalation in October 1995. Imaging by D. James S. Lim, Dr. Kilburn states, showed no abnormality of the Circle of Willis and posterior fossa of the skull and brain area. Magnetic brain and neck scans on January 2, 1996 showed no abnormalities. Spinal fluid examination was normal, and there was no history of other chemical exposures possibly competing to cause the impairment found. There was no history of pre-existing or spontaneous neurological disease or impairment. In summary, Dr. Kilburn states, in the process of differential diagnosis that he applied in Mr. Downs, no alternate factors nor additional considerations were found.

Dr. Kilburn concludes that patient Andrew A. Downs, who was well and healthy, had a single skin contact and inhalational exposure to Rubiflex in October 1995 that was followed in a logical sequence by injury consisting of severe facial pain, sensory abnormalities, visual field losses, impaired balance, slowed reaction time and recall-memory impairment. As other possible causes have been eliminated, Dr. Kilburn opined, it is concluded that the chemicals in the Rubiflex are responsible and Dr. Kilburn's expert opinion was offered to the standard of more likely than not.

Dr. Kilburn is Ralph Edington Professor of Medicine at the University of Southern California School of Medicine, he is editor and chief of the Archives of Environmental Health and has published over two hundred scientific papers [Doc. 47, Exhibits A & D].

II. POSITIONS OF THE PARTIES

A. Defendants' Assertions²

In their motion in limine, defendants have moved to exclude the testimony of Dr. Kilburn, asserting that Dr. Kilburn's opinions do not satisfy the legal requirements set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and asserting that he is not qualified to testify about ICI's product [Doc. 36]. In its memorandum in support of their motion in limine, defendants point out that Dr. Kilburn has been excluded from testifying in at least six other toxic tort cases, and his opinions have been rejected in a seventh. Nelson v. Tennessee Gas Pipeline Company, No. 95-1112, 1998 WL 1297690 (W.D.Tenn. August 31, 1998) (excluded); Lofgren v. Motorola, No. CV 93-05521, 1998 WL 299925 (Ariz.Sup.Ct. June 1, 1998) (excluded); Goeb v. Tharaldson, No. C3-92-602051 (St. Louis County, Minn. February 4, 1998) (excluded); Valentine v. Pioneer Chlor Alkali, Inc., 921 F.Supp. 666, 673-74 (D.Nev.1996) (excluded); Horne v. Pioneer Chlor Alkali Co., Inc., NO. CV-S-93-1060 HDM (D.Nev. March 4, 1996) (excluded); Thomas v. FAG Bearings Corp., Inc., 846 F.Supp. 1400 (W.D.Mo.1994) (excluded); Georgine v. Amchem Products, Inc., 157 F.R.D. 246 (E.D.Pa.1994) (rejected).

Dr. Kilburn's testimony was excluded or rejected in these actions, defendants assert, because the courts determined that his methodology was unscientific. Defendants offer the following language taken from these decisions to illustrate this fact:

• "Dr. Kilburn's deposition testimony and portions of his written work submitted by Tenneco suggest that he is a strong opponent of the use of chemicals. Expert opinions are about science, however, not advocacy. Based on the entire record in this case, Dr. Kilburn's studies suffer from significant methodological flaws. Moreover, his opinions are completely unsupported by any scientific research outside the litigation context.... Dr. Kilburn's opinions are based upon nothing more than conjecture, speculation, and litigation animus." Nelson, at 16.

• "Dr. Kilburn's `revolutionary hypotheses' appear to be supported by nothing more than supposition, hunches, and selective reliance on studies." ... His "methodologies utilized in this case do not appear to be accepted by the medical or scientific community." Dr. Kilburn's "conclusion appeared to be more litigation-driven than science oriented." Lofgren, at 32, 52-54.

• "Dr. Kilburn's method is contrary to generally accepted scientific practice, is not generally accepted, and, in addition, is not scientifically reliable for purposes of determining such a cause and effect relationship. Dr. Kilburn's proffered opinion here is based on speculation and conjecture by reason of the fact that he did not apply a generally accepted scientific method to determine whether exposure of the plaintiffs to Dursban and its components was capable of causing the injuries which are here claimed." Goeb, at 4.

• "Dr. Kilburn's study suffers from very serious flaws.... As a result, his conclusions ... cannot be said to be derived from acceptable scientific methodology." Valentine, 921 F.Supp. at 678.

• "The significant...