Polski v. Quigley Corp.

• Decision Date: 13 August 2008
• Docket Number: No. 07-3350.,07-3350.
• Citation: 538 F.3d 836
• Parties: Howard J. POLSKI; Sheryl L. Polski, Appellants, v. The QUIGLEY CORPORATION, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

538 F.3d 836

Howard J. POLSKI; Sheryl L. Polski, Appellants, v. The QUIGLEY CORPORATION, Appellees.

No. 07-3350.

United States Court of Appeals, Eighth Circuit.

Submitted: May 14, 2008.

Filed: August 13, 2008.

Barry G. Reed, argued, Scottsdale, AZ, Michael B. Sonsteng, Minneapolis, MN, on the brief, Minneapolis MN, for appellant.

Walter H. Swayze, argued, Philadelphia, PA, for appellee.

Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Howard and Sheryl Polski (collectively "the Polskis") brought suit against the Quigley Corporation ("Quigley"), alleging that they suffered severe and permanent impairment of their senses of taste and smell due to their use of Cold-Eeze, a nasal spray made and distributed by Quigley for the treatment of cold symptoms. The district court¹ granted Quigley's motion to exclude the opinion and testimony of the Polskis' sole causation expert. The court then granted Quigley's motion for summary judgment. The Polskis appeal the court's decision excluding the expert testimony and the resulting summary judgment. We affirm.

I. Background

Because we are reviewing a grant of summary judgment, we describe the facts in the light most favorable to the Polskis, the nonmoving party. Hervey v. County of Koochiching, 527 F.3d 711, 715 (8th Cir.2008). The Polskis, brother and sister, each used Cold-Eeze, as directed,² for several days in December 2003, to treat symptoms associated with the common cold. The Polskis each experienced a burning sensation in their nostrils and sneezing with each application of the spray. In mid-January 2004 they both realized that they had lost their sense of taste, after confiding to one another over a meal that they could not taste the food. In April 2004, the Polskis visited an otolaryngology,³ who found no physical causes for their sensory loss.

The Polskis filed suit against Quigley, asserting claims for fraud, negligence strict products liability, breach of express and implied warranties, and violations of Minn.Stat. Ann. § 325F.69, alleging that the use of Cold-Eeze caused their sensory loss. To prove that Cold-Eeze caused their impairments, which was essential for each of their claims, the Polskis offered the expert opinion of Dr. Bruce Jafek, M.D., a professor of otolaryngology at the University of Colorado School of Medicine. Dr. Jafek authored two reports in this case, one for each of the Polskis. In each report, Dr. Jafek opined that: (1) Cold-Eeze, when used as directed, comes into contact with the olfactory epithelium—the "smell tissue" located high inside the human nose; (2) the active ingredient in Cold-Eeze, zinc gluconate, is toxic to the olfactory epithelium; (3) Cold-Eeze, when used as directed, delivers a sufficient amount of zinc gluconate to the olfactory epithelium to damage the sense of smell; (4) the damage that the zinc gluconate in Cold-Eeze caused to the olfactory epithelium is permanent in some cases; and (5) the zinc gluconate in Cold-Eeze, and not something else, such as a virus, caused the Polskis to lose their sense of smell.

Quigley conceded that Dr. Jafek was qualified as a nasal health expert, but moved to exclude Dr. Jafek's testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In its motion, Quigley argued that Dr. Jafek's opinion was not based upon scientifically reliable evidence or testing but was merely an untested speculative theory. The district court agreed and struck Dr. Jafek's expert testimony. The court concluded that Dr. Jafek's causation opinion rested on the unproven premise that Cold-Eeze, when used as directed, comes into contact with the olfactory epithelium in humans. Consequently, his opinions were not sufficiently reliable to be admitted under Rule 702.

Because all of the Polski's claims required proof of causation and their causation evidence was based solely on Dr. Jafek's expert opinion, having concluded that Dr. Jafek's opinion was inadmissible, the court granted Quigley's motion for summary judgment. The Polskis now appeal, arguing that the district court erred in precluding Dr. Jafek's expert opinion.

II. Discussion

We review the district court's exclusion of expert testimony for an abuse of discretion. Sappington v. Skyjack, Inc., 512 F.3d 440, 448 (8th Cir.2008). Federal Rule of Evidence 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or 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.

When faced with a proffer of expert scientific testimony, the trial court must make "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786.

We recently explained Rule 702 and the Daubert standard, as follows:

The admissibility of expert testimony is governed by Federal Rule of Evidence 702; under Rule 702 the trial judge acts as a "gatekeeper" screening evidence for relevance and reliability. Daubert, 509 U.S. at 589, 113 S.Ct. 2786, 125 L.Ed.2d 469. "Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony. The rule clearly is one of admissibility rather than exclusion." Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (internal quotations and citations omitted). "The exclusion of an expert's opinion is proper only if it is so fundamentally unsupported that it can offer no assistance to the jury." Wood v. Minn. Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir.1997) (internal quotations and citation omitted).

A district court should apply a three-part test when screening testimony under Rule 702.

First, evidence based on scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic rule of relevancy. Second, the proposed witness must be qualified to assist the finder of fact. Third, the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires.

Lauzon, 270 F.3d at 686 (internal citations and quotations omitted).

In Daubert, the Supreme Court provided a non-exhaustive list of factors a district court should consider when performing its gatekeeper function, including,

1) whether the theory or technique can be (and has been) tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error; and 4) whether the theory has been generally accepted.

Lauzon, 270 F.3d at 686.

Subsequent cases have proposed additional factors, including, whether the expertise was developed for litigation or naturally flowed from the expert's research; whether the proposed expert ruled out other alternative explanations; and whether the proposed expert sufficiently connected the proposed testimony with the facts of the case. Id. at 686-87.

Sappington, 512 F.3d at 448-49.

In this case, the Polskis contend that the district court abused its discretion in excluding Dr. Jafek's expert testimony. They assert that the district court went beyond its "gatekeeping" duty and invaded the province of the jury by weighing the parties' disputed arguments of causation.

Quigley did not contest Dr. Jafek's qualifications to be an expert of otolaryngology, the anatomy of the nose, and the senses of taste and smell. Instead they challenged Dr. Jafek's opinion that Quigley's product, when used as directed, puts zinc gluconate on a person's olfactory epithelium. Based on his own knowledge and expertise, his research, the research of others, and his observation that Cold-Eeze delivers a straight line spray capable of traveling several feet, Dr. Jafek concluded that the Polski's use of Cold-Eeze caused their sensory loss. Dr. Jafek opined that the spray emitted from the Cold-Eeze bottle traveled into the nasal cavity and through the straight passageway to the olfactory epithelium, resulting in the zinc ions in the spray coming into direct contact with the olfactory epithelium of the user; Dr. Jafek's other conclusions all rely on the validity of this premise. Albeit conceivable that Quigley's spray bottle could expel some quantity of the medication the full distance in the nasal passage to the olfactory epithelium, Dr. Jafek never tested this theory—nor did anyone else.

The district court concluded that this untested theory was "not sufficiently reliable to be admitted under Rule 702." Polski v. Quigley Corp., No. 04-4199, 2007 WL 2580550, at *5 (D.Minn. Sept. 5, 2007). After a thorough review, we find no abuse of discretion in the district court's decision to exclude Dr. Jafek's testimony.

Dr. Jafek's causation theory is based on his untested belief that Cold-Eeze, when used as directed, travels in a straight-line liquid movement capable of reaching the olfactory epithelium through the nasal passage, allowing the zinc ions in the drug to come into contact with the difficult to access olfactory epithelium.⁴ The Polskis admit that Dr. Jafek had not scientifically tested this theory. However, the Polskis assert that such testing could not ethically be conducted on live humans because research has shown that zinc may cause loss of smell and taste if it comes into contact with the olfactory epithelium. As the district court observed, however, Dr. Jafek's theory could have easily and ethically...