Peteet v. Dow Chemical Co.

• Decision Date: 04 April 1989
• Docket Number: No. 87-6314,87-6314
• Citation: 868 F.2d 1428
• Parties: 27 Fed. R. Evid. Serv. 1047 Allen PETEET, et al., Plaintiffs, Ann I. Greenhill, Individually and On Behalf of the Heirs of the Estate of James Edward Greenhill, Deceased, Plaintiffs-Appellees, v. DOW CHEMICAL COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1428

868 F.2d 1428

27 Fed. R. Evid. Serv. 1047

Allen PETEET, et al., Plaintiffs Ann I. Greenhill, Individually and On Behalf of the Heirs of the Estate of James Edward Greenhill, Deceased Plaintiffs-Appellees, v. DOW CHEMICAL COMPANY, Defendant-Appellant.

No. 87-6314.

United States Court of Appeals, Fifth Circuit.

April 4, 1989.

Joseph J. Ortego, Uniondale, N.Y., Mike Hatchell, Tyler, Tex., Michael A. Makulski, Midland, Mich., for defendant-appellant.

Scott Baldwin, Marshall, Tex., for plaintiffs-appellees.

Appeals from the United States District Court for the Eastern District of Texas.

Before GEE, SNEED, ^* and WILLIAMS, Circuit Judges.

SNEED, Circuit Judge:

Dow Chemical Co. ("Dow") appeals a jury verdict in favor of plaintiffs finding Dow liable in the death of James Greenhill. We affirm.

I. FACTS AND PROCEEDINGS BELOW

In 1976 and 1977, James Greenhill was seasonally employed by the United States Forest Service in Oregon. Although primarily a fire fighter, he occasionally participated in a weed control project called "hack and squirt." This project required Greenhill to apply herbicides manufactured by Dow, exposing him to 2,4-dichlarophenoxyacetic acid (2,4-D). Greenhill's exposure to 2,4-D ceased in 1978 when he was transferred to another park. A year later, Greenhill was diagnosed with Hodgkin's disease. He died seven years later.

Greenhill's surviving spouse, son, and parents sued Dow in the Eastern District of Texas. ¹ The case was transferred to the "Agent Orange" products liability action in the Eastern District of New York. After settlement of that case in 1986, Greenhill's action against Dow for the exposure to 2,4-D was returned to Texas.

The case was tried in November and December, 1987. A jury awarded the plaintiffs $1.5 million in damages. Dow appeals.

II. JURISDICTION

The district court had jurisdiction under 28 U.S.C. Sec. 1332. This court's jurisdiction rests on Sec. 1291.

III. DISCUSSION

A number of issues of various weights are raised by this appeal. It is uncertain whether this number could have been reduced by a more crisp and orderly process than appears to have been employed in this case. It is likely, however, that a more crisp and orderly process would have framed the issues more precisely. The difficulty is that while such a process would have simplified our task, it is by no means clear which party would have been favored or disfavored thereby. We now turn to the issues.

A. Notice of Appeal

Plaintiffs seek to narrow the issues properly before us by asserting that Dow can appeal only the court's order denying the motion for JNOV and the motion for new trial because Dow's notice of appeal only covered these issues. Our task cannot be reduced so easily. Fed.R.App.P. 3(c) requires appellants to designate the judgment or order to be appealed. In its second notice of appeal, Dow stated that it was appealing from the "judgment entered in this action," and from the denial of the motion for JNOV and motion for new trial. Notices of appeal should be liberally construed. See Ingraham v. United States, 808 F.2d 1075, 1080 (5th Cir.1987). Dow's notice effectively designated the entire record for appeal.

B. Dr. Teitelbaum's Testimony

Dow strongly attacks the plaintiff's principal witness, Dr. Teitelbaum. It argues that the trial court erred in admitting his testimony which was the only evidence that 2,4-D caused Greenhill's Hodgkin's disease.

Dr. Teitelbaum's qualifications are substantial. He is a medical doctor and certified in toxicology. 6 R. 11-12, 18. He has had various academic appointments in toxicology and poison control; he has consulted with several corporations on the proper handling of poisonous materials; and he has served on state and federal government advisory committees. 6 R. 11-12, 15, 17. He also testified that he has published 38 or 39 articles on toxicology, 6 R. 19, and that he has extensive experience in evaluating lymphoma to determine "whether there may or may not have been an environmental or occupational cause" for the disease, 6 R. 20.

As to his preparation for this case, Dr. Teitelbaum testified that:

I've reviewed the medical records of Mr. Greenhill, as much as we have been able to get. I have reviewed his deposition. I have reviewed the medical literature on the subject. I've looked at the slides. I had the slides looked at by colleagues....

6 R. 21.

Dr. Teitelbaum's testimony was extensive. He first testified about the difficulty of diagnosing Hodgkin's disease, both in general and in this case. 6 R. 36. On the basis of seven reports by a number of pathologists, Dr. Teitelbaum testified that Greenhill's condition was "most consistent with Hodgkin's disease." ² 6 R. 51. Next, Dr. Teitelbaum discussed twenty-two scientific articles linking 2,4-D with various diseases including cancer and, specifically, Hodgkin's disease. 6 R. 115-21. He concluded that "to a reasonable medical certainty, Mr. Greenhill's exposure to ... 2,4-D was a significant, contributing cause to his cancer and his death." 6 R. 122.

Dow raises a number of objections about Dr. Teitelbaum's testimony. We will address each in turn.

The trial court's admission or exclusion of expert testimony will not be reversed on appeal unless the district court's action was " 'manifestly erroneous.' " Koonce v. Quaker Safety Prods. & Mfg. Co., 798 F.2d 700, 721 (5th Cir.1986) (quoting Perkins v. Volkswagen of Am. Inc., 596 F.2d 681, 682 (5th Cir.1979)); Page v. Barko Hydraulics, 673 F.2d 134, 139 (5th Cir.1982); see Bauman v. Centex Corp., 611 F.2d 1115, 1120 (5th Cir.1980). Despite this broad discretion, we are mindful that district judges and appellate courts must carefully review an expert's testimony to ensure that the expert has the necessary qualifications and a sufficient basis for his opinion. See Eymard v. Pan Am. World Airways (In re Air Crash Disaster), 795 F.2d 1230, 1233-34 (5th Cir.1986).

1. Specialization

First, Dow complains that Dr. Teitelbaum was not qualified to render an opinion because he was not a specialist in any relevant field. Dow preserved this objection. See 6 R. 2-5, 28, 43-44. As noted above, Dr. Teitelbaum is a certified toxicologist. ³ The fact that Dr. Teitelbaum is not a specialist in any other field goes to the weight of his opinion, not its admissibility. See Holmes v. J. Ray McDermott & Co., 734 F.2d 1110, 1115 (5th Cir.1984); see also Payton v. Abbott Labs, 780 F.2d 147, 155-56 (1st Cir.1985) (upholding the admissibility of two doctors' opinions over the objection that they were clinicians and not research scientists); Ashland Oil, Inc. v. Delta Oil Prods. Corp., 685 F.2d 175, 178 (7th Cir.1982) (upholding admission of expert's opinion despite his lack of specialization in a particular branch of chemistry), cert. denied, 460 U.S. 1081, 103 S.Ct. 1769, 76 L.Ed.2d 343 (1983); E. Cleary, McCormick on Evidence Sec. 13, at 34 (3d ed. 1984) ("While the court may rule that a certain subject of inquiry requires that a member of a given profession ... be called; usually a specialist in a particular branch within a profession will not be required." (footnote omitted)).

2. Adequate Basis

Dow next objects to Dr. Teitelbaum's testimony on the grounds that he had no adequate basis for his opinion. Specifically, Dow argues that Dr. Teitelbaum's opinion was inadmissible because: (1) he never examined Greenhill personally, and (2) his opinion was based solely on information supplied by counsel. Dow's overall objection to Dr. Teitelbaum's qualifications properly preserved this issue. 6 R. 2-5. ⁴

The Federal Rules of Evidence require that an expert's opinion be based on information "of a type reasonably relied upon by experts in the particular field...." Fed.R.Evid. 703. In making this determination, the trial court should defer to the expert's opinion of what data they find reasonably reliable. Greenwood Utils. Comm'n v. Mississippi Power Co., 751 F.2d 1484, 1495 (5th Cir.1985); In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 277 (3d Cir.1983), rev'd on other grounds, 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Our review of this error is hampered because neither the parties nor the court framed the issue in these terms. Indeed, the district court overruled Dow's objection without comment. 6 R. 6. This court suggested in Greenwood that, in the absence of an explicit factual finding on this issue, we must remand the case to the district court. See 751 F.2d at 1496. We do not believe a remand in this case is necessary, however. We may take judicial notice that the facts relied on by Dr. Teitelbaum are those usually considered by medical experts. See United States v. Lawson, 653 F.2d 299, 302 n. 7 (7th Cir.1981), cert. denied, 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982).

The determination of whether an expert meets the requirements of Fed.R.Evid. 703 must be made on a case-by-case basis. Soden v. Freightliner Corp., 714 F.2d 498, 502-03 (5th Cir.1983). We review the district court's actions for abuse of discretion. Id. at 503.

Dow's first objection, that Dr. Teitelbaum never personally examined Mr. Greenhill, fails to hit its mark. A personal examination of the person or object of the expert's testimony is not required under Fed.R.Evid. 703. In Sweet v. United States, 687 F.2d 246, 249 (8th Cir.1982), the government's expert was permitted to testify about the possible effects of LSD on the plaintiffs even though he never examined them. Similarly, in Data Line Corp. v. Micro Technologies, Inc., 813 F.2d 1196, 1200-01 (Fed.Cir.1987), experts in a patent case testified without physically examining the cash register that allegedly infringed upon plaintiff's patent. See generally 3 D. Louisell & C. Mueller, Federal Evidence Sec. 389, at 657 (1979) (rule 703 "diminishes the need for the expert to have firsthand knowledge concerning the matters in issue").

Dow's second objection, that Dr. Teitelbaum relied on information supplied...