National Bank of Commerce v. Associated Milk Producers

• Decision Date: 12 June 1998
• Docket Number: No. B-C-96-50.,B-C-96-50.
• Citation: 22 F.Supp.2d 942
• Parties: NATIONAL BANK OF COMMERCE (of El Dorado, Arkansas), Conservator of the Estate (only) of John McDougal, and John McDougal, Individually, Plaintiff, v. ASSOCIATED MILK PRODUCERS, INC., Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

22 F.Supp.2d 942

NATIONAL BANK OF COMMERCE (of El Dorado, Arkansas), Conservator of the Estate (only) of John McDougal, and John McDougal, Individually, Plaintiff, v. ASSOCIATED MILK PRODUCERS, INC., Defendant.

No. B-C-96-50.

United States District Court, E.D. Arkansas, Northern Division.

June 12, 1998.

COPYRIGHT MATERIAL OMITTED

Terry F. Wynne, Bridges, Young, Matthews Drake, Pine Bluff, AR, Neal W. Adams, Adams, Lynch, Loftin & S P.C., Bedford, TX, for Associated Milk Producers, Inc., defendant.

MEMORANDUM OPINION AND ORDER

EISELE, District Judge.

Before the Court is defendant Associated Milk Producers, Inc.'s ("AMPI") Motion to Exclude Opinion Testimony of Plaintiff's Experts¹ and defendant's Motion for Summary Judgment. The parties have thoroughly briefed this issue. Furthermore, the Court held a hearing on the issue January 7-13, 1998, at which many of the experts for the parties testified. This testimony supplemented the summary judgment submissions previously filed. Thereafter, on January 29, 1998, the Court heard the oral arguments of counsel.

AMPI files its motion to exclude plaintiff, John McDougal's ("plaintiff"), causation experts, contending that their proffered testimony fails to meet the standards set forth in Federal Rules of Evidence 702 and 703, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny.

AMPI seeks to exclude the testimony of Dr. Jimmie L. Valentine, Dr. Charles Fowler, Dr. Maly Mazumder, Dr. Alex Pappas, Dr. Brad H. Pollock, and Dr. Daniel T. Teitelbaum.² These witnesses are being offered to opine regarding several issues crucial to this lawsuit, namely: the occurrence of aflatoxin M-1 (hereinafter "AFM") in milk sold by AMPI during a fifteen month period in 1990 and 1991, whether AFM causes laryngeal cancer in humans, and, if so, at what levels of exposure and dose. Plaintiff asserts he was subjected to AFM-contaminated milk. He contends, first, that under accepted scientific principles, he is not required to prove the dose of AFM to which he was exposed because there is no safe threshold, since one molecule of AFM could cause his cancer under the "one shot" theory. Alternatively, he argues that he has produced sufficient evidence of both his exposure to AFM and the dose he experienced. After exhaustively reviewing the record before it, the Court is ready to rule on defendant's motions. For the reasons set forth in this Memorandum Opinion, the Court will grant defendant's motion to exclude and, as a consequence, it will also have to grant defendant's motion for summary judgment.

I. BACKGROUND

This diversity case alleges causes of action under Arkansas law based on the tort of outrage, strict liability, breach of implied and express warranties, fear of future consequences and reckless and culpable negligence. From approximately July 26, 1990 until October 31, 1991, John McDougal worked in the Batesville, Arkansas, cheese manufacturing plant of Hills Valley Foods ("HVF"). HVF is an Arkansas corporation which bought milk from distributors and processed that milk into cheese and cheese curd. AMPI, a Kansas corporation, distributed milk in Arkansas (among other states), and supplied HVF with some of the milk it used to make cheese and curd.

During his employment at HVF, plaintiff worked on the cheese production line and was allowed to consume cheese freely. Besides ingestion, it is undisputed that plaintiff was exposed to some quantity of milk via inhalation of aerosolized milk particles that were produced by the cheese making process. After suffering from hoarseness for approximately six weeks, plaintiff first presented for treatment on February 27, 1995. He was diagnosed as having laryngeal cancer. He then had surgery to remove half of his voice box and vocal cords on March 6, 1995. He subsequently underwent additional surgeries. Plaintiff asserts that, in June of 1995, he learned that certain AMPI employees had pled guilty in federal court to the distribution of, and conspiracy to distribute, contaminated milk in interstate commerce.³ This was the first notice he had of such contamination.

Plaintiff alleges he developed laryngeal cancer because AMPI provided HVF with AFM-contaminated milk to which he was exposed at his workplace. The tainted milk allegedly was utilized by HVF as a result of the falsification and alteration of test results designed under a regulatory regime to determine the quality of milk. Plaintiff alleges that AMPI redirected to HVF certain shipments of milk that had tested positive for AFM.

AFM is a natural by-product of aflatoxin B-1 ("AFB"), a substance occasionally found in grains, corn, peanuts, and other food products which often are used to feed cattle. When cows consume AFB-contaminated feed, their systems break down the aflatoxin B-1 into the metabolite AFM, which they excrete in their milk. Plaintiff alleges he was exposed to AFM through eating cheese, by inhaling both "dried" and liquid aerosol milk particles produced by the cheese making process at HVF, and by dermal exposure. Plaintiff has named AMPI as the only defendant in this lawsuit. Although plaintiff earlier relied on the opinion that his laryngeal cancer was caused by his exposure to aflatoxin through his eating of aflatoxin-tainted cheese, it is now clear that he is relying upon the theory that aflatoxin inhaled in aerosol form was the cause of his cancer. In any event, plaintiff does not now rely upon any expert opinion that his exposure to aflatoxin through his skin or from eating or drinking contaminated cheese or milk caused his laryngeal cancer. However, he does still contend that his eating of contaminated cheese forms a legal basis for his fear of future cancer such as hepatic (liver) cancer.

Defendant filed its motion to exclude plaintiff's experts' causation testimony, asserting that the testimony fails to meet Daubert's admissibility requirements. Prior to the January 7, 1998 hearing on the issue, AMPI contended that plaintiff's experts' testimony did not constitute "scientific knowledge" and that their theories and methodologies had no general acceptance in the scientific community. AMPI argued that plaintiff must, but cannot, establish: (1) the level of exposure to AFM that is hazardous to human beings generally; (2) that such level of exposure causes the type of injury (laryngeal cancer) of which plaintiff complains; and (3) that John McDougal was exposed while working at HVF to such level of AFM from the milk sold by AMPI to Hills Valley Farms. Quoting Cavallo v. Star Enter., 892 F.Supp. 756 (E.D.Va.1995), defendant has maintained prior to, and after, the Daubert hearing that "toxicity is a function of dose. Thus, the question for causation purposes is: At what levels of exposure do what kinds of harm occur?" After the hearing on this issue, the Court is convinced that it must conduct a two pronged analysis.

First, the cornerstone issue is whether plaintiff may proceed under a "no-threshold" or "one-hit" theory (hereinafter "no-threshold"). Under a no-threshold approach, plaintiff's experts maintain that there exists no safe level of exposure to genotoxins in general, and AFM in particular. Consequently, they posit that exposure to as little as one molecule of aflatoxin can produce alterations in genetic material leading to cancer. Defendant argues this approach fails to meet the Daubert admissibility standard even if the underlying scientific, biologic theory has acceptance. See discussion below.

Alternatively, if the Court rejects the nothreshold theory, the inquiry turns to whether AFM causes laryngeal cancer in humans, and if so at what dose. If plaintiff has admissible evidence on those issues, the question becomes whether Mr. McDougal was subjected to a sufficient dosage to have caused his laryngeal cancer. Defendant's argument is: "It is simply that there is not evidence in any medical literature or studies that aflatoxin (and particularly aflatoxin M-1 which is the metabolite to which Mr. McDougal was allegedly exposed) causes laryngeal cancer such as Mr. McDougal had. They also fail to prove, even if aflatoxin M-1 were assumed to cause laryngeal cancer, the level of exposure at which it would do so or the level of Mr. McDougal's exposure."

II. DISCUSSION

A. The Daubert Standard

Of course, Daubert provides the starting point when a district court undertakes its "gatekeeper role" in determining the admissibility of proffered scientific testimony. This Court provided an extended presentation of what Justice Blackman's opinion requires of trial courts in National Bank of Commerce v. Dow Chemical Co., 965 F.Supp. 1490 (E.D.Ark.1996), aff'd 133 F.3d 1132 (8th Cir.1998). The Court quotes extensively from its opinion in that case in order to put its analysis of the evidence in its doctrinal context:

We start with Justice Blackmun's opinion in Daubert. After concluding that the Frye Rule ("that austere standard") should not be applied in federal trials, Daubert, 509 U.S. at 589, 113 S.Ct. at 2794, Justice Blackmun went on to discuss the proper test for admissibility of scientific evidence. He pointed out that Rule 702 nowhere refers to the "general acceptance" test of Frye. He then explained as follows:

That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence. Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.

The primary locus of this obligation is Rule 702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a...