Sarkees v. E. I. Dupont De Nemours & Co.

• Decision Date: 06 October 2021
• Docket Number: Docket No. 20-3170,August Term 2020
• Citation: 15 F.4th 584
• Parties: James H. SARKEES, Plaintiff-Appellant, Deborah J. Sarkees, Plaintiff, v. E. I. DUPONT DE NEMOURS AND COMPANY, Individually, and as Successor in interest to the First Chemical Corporation, First Chemical Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

15 F.4th 584

James H. SARKEES, Plaintiff-Appellant,Deborah J. Sarkees, Plaintiff,

v.E. I. DUPONT DE NEMOURS AND COMPANY, Individually, and as Successor in interest to the First Chemical Corporation, First Chemical Corporation, Defendants-Appellees.

Docket No. 20-3170

August Term 2020

United States Court of Appeals, Second Circuit.

Argued: June 22, 2021

Decided: October 6, 2021

Steven H. Wodka, Little Silver, NJ (John N. Lipsitz, Lipsitz & Ponterio, LLC, Buffalo, NY, on the brief), for Plaintiff-Appellant James H. Sarkees.

Joshua S. Glasgow, Phillips Lytle LLP, Buffalo, NY (Lisa L. Smith, Kevin M. Hogan, Phillips Lytle LLP, Buffalo, NY, Justin D. Kloss, David W. Kloss, Kloss Stenger & Gormley LLP, Buffalo, NY, on the brief), for Defendants-Appellees E. I. DuPont de Nemours and Company and First Chemical Corporation.

Before: NEWMAN, CABRANES, PARKER, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal concerns the exclusion of an expert witness's report and deposition testimony, specifically the expert's opinion that the chemical ortho-toluidine ("OT") was the specific cause of a worker's bladder cancer

.

Plaintiff-Appellant James H. Sarkees ("Sarkees") appeals from the August 24, 2020, judgment of the U.S. District Court for the Western District of New York (John L. Sinatra, Jr., District Judge). The judgment dismissed, on motion for summary judgment, his complaint against Defendants-Appellees E.I. DuPont de Nemours and Company ("DuPont") and First Chemical Corporation ("First Chemical") (together "Defendants"). Sarkees v. E.I. DuPont de Nemours & Co. ,¹ No. 17-CV-651 (JLS), 2020 WL 5640059, at *1 (W.D.N.Y. 2020) (" Sarkees II ").

We conclude that the report and deposition testimony of the Plaintiff's expert witness, Dr. L. Christine Oliver, was improperly excluded because the District Court relied on a state court evidence ruling instead of the applicable federal evidence rule. We further conclude that her evidence is admissible under applicable federal standards and warrants denial of the Defendants’ motion for summary judgment on Sarkees’ claims. We therefore reverse the judgment of the District Court, vacate the ruling excluding the evidence from Sarkees’ expert, and remand his claims for trial.

Background

Facts . The facts are taken primarily from Sarkees’ deposition and the undisputed (background) portions of Dr. Oliver's report. In 1974, when Sarkees was 19, he worked for nonparty Goodyear Tire & Rubber Company ("Goodyear") in Niagara Falls, New York, for seven months, first as a production operator and then as a lab technician. Throughout his brief employment with Goodyear, Sarkees believed he was exposed to OT. As he explained, he took chemical samples and unloaded railroad tank cars, the majority of which contained OT; he drove a forklift to load Nailax ² (a substance made with OT) onto a trailer; and he manually cleaned Nailax reactors and packaged Nailax.

While conducting many of these tasks, Sarkees recognized the smell of OT and experienced chemicals splashing on his skin while, for example, sampling and unloading railroad tank cars; he stated that "the fumes of the [OT] would come out of the hatch of the tank car and would sometimes take my breath away and choke me." A-116, A-413. Due to his small size, he was often assigned to clean the inside of Nailax reactors, spending about 40 hours cleaning them while wearing "the same contaminated coveralls for the entire work shift." A-115, A-412. When cleaning out Nailax residue from the bottom of reactors, "he splashed some on his clothing and occasionally on his skin." A-115. Sarkees approximated that he cleaned the sparkler filters "more than 80 times" at 1.5 hours each, and was forced to inhale a "strong chemical smell" and fumes without a respirator, noting that "[i]t was hot, smelly, and the fumes would choke you." A-116, A-412.

There is no dispute that First Chemical and DuPont both manufactured Nailax.

The record includes a 2014 report of the U.S. Department of Health and Human Services, which states, "Epidemiological studies have demonstrated a causal relationship between exposure to o -toluidine and urinary-bladder cancer

in humans." A-319.

Beginning in 1998, Sarkees regularly participated in an annual bladder cancer

screening program offered by Goodyear to former employees. In 2016, at the age of 61 (42 years after he had worked at Goodyear), he was diagnosed with bladder cancer.

Procedural history . Sarkees and his wife filed their complaint in the District Court in July 2017, asserting claims for negligence, strict products liability on a failure-to-warn theory, and loss of consortium, and sought compensatory and punitive damages. The Plaintiffs alleged that Sarkees’ bladder cancer

was attributable to the Defendants’ manufacture and distribution of OT.

Following discovery, Magistrate Judge Hugh B. Scott issued a Report and Recommendation ("R&R"), recommending that the District Court deny the Defendants’ motions to exclude the expert testimony of the Plaintiff's general and specific causation experts and deny the Defendants’ motion for summary judgment on every claim except the claim for loss of consortium, alleged by Sarkees’ wife. See Sarkees v. E.I. DuPont de Nemours & Co. , No. 17-CV-651, 2020 WL 906331 (W.D.N.Y. Feb. 25, 2020) (" Sarkees I "). With respect to the claim for loss of consortium, the Magistrate Judge recommended dismissing the claim because her husband's exposure to OT had occurred 12 years before their marriage. Id . at *20.

In August 2020, District Judge Sinatra declined to adopt most of the R&R, except for dismissal of the claim for loss of consortium. See Sarkees II , 2020 WL 5640059, at *3. Dismissal of the claim for loss of consortium is not being appealed.

The District Judge precluded Dr. Oliver's report and testimony on the issue of specific causation, id . at *7–8, and ruled that, in the absence of admissible evidence on specific causation, the Defendants were entitled to summary judgment, id . at *8. He denied as moot the Defendants’ motion to exclude the testimony of the Plaintiffs’ expert witness on the issue of general causation, id ., and did not rule on the admissibility of Dr. Oliver's conclusion on general causation. We consider the reasoning of the Magistrate Judge and the District Judge below.

Discussion

We review a district judge's exclusion of evidence from an expert witness for abuse of discretion, see General Electric Co. v. Joiner , 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ; Zaremba v. General Motors Corp. , 360 F.3d 355, 357 (2d Cir. 2004), bearing in mind that such abuse occurs when a judge's discretionary ruling is based on an error of law, see Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) ; United States v. Walker , 974 F.3d 193, 203 (2d Cir. 2020).

In a diversity of citizenship case, state law, here New York's, applies to substantive issues, and federal law applies to procedural issues. See Erie Railroad Co. v. Tompkins , 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Although "[c]lassification of a law as ‘substantive’ or ‘procedural’ for Erie purposes is sometimes a challenging endeavor," Gasperini v. Center for Humanities, Inc. , 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996), it has been clear, at least since Hanna v. Plumer , 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), that "[w]hen a situation is covered by one of the Federal Rules, ... the court has been instructed to apply the Federal Rule" unless the rule violates the Rules Enabling Act or constitutional restrictions, id . at 471, 85 S.Ct. 1136. This Court has been explicit on the point: "The admissibility of expert ... testimony is governed by the Federal Rules of Evidence," Campbell ex rel. Campbell v. Metropolitan Property & Casualty Insurance Co. , 239 F.3d 179, 184 (2d Cir. 2001), specifically, Rule 702, see id . All circuits that have considered the question agree. See Primiano v. Cook , 598 F.3d 558, 563 (9th Cir. 2010), as amended , (Apr. 27, 2010); Gust v. Jones , 162 F.3d 587, 594 (10th Cir. 1998) ; Brooks v. American Broadcasting Cos. 999 F.2d 167, 173 (6th Cir. 1993) ; Stutzman v. CRST, Inc. , 997 F.2d 291, 294–95 (7th Cir. 1993) ; Fox v. Dannenberg , 906 F.2d 1253, 1255 (8th Cir. 1990) ; Ealy v. Richardson-Merrell, Inc. , 897 F.2d 1159, 1163 (D.C. Cir. 1990) ; Forrestal v. Magendantz , 848 F.2d 303, 305 (1st Cir. 1988) ; Scott v. Sears, Roebuck & Co. , 789 F.2d 1052, 1054–55 (4th Cir. 1986) ; Dawsey v. Olin Corp. , 782 F.2d 1254, 1262 (5th Cir. 1986). A leading treatise adds an important point: "Because the Evidence Rules were enacted directly by Congress, their validity vis-à-vis state law ... stands on ground even firmer than that of the Federal Rules of Civil Procedure."³

Several circuits have followed Hanna by applying Rule 702 to admit expert testimony even when a state rule of evidence may have excluded the evidence if offered in a state court. See , e.g. , Stutzman , 997 F.2d at 294–96 ; Scott , 789 F.2d at 1054–56 ; Dawsey , 782 F.2d at 1261–62.⁴

Several circuits have recognized, however, that some state evidence rules might be so closely related to state substantive provisions that the state evidence rule should be applied in federal court diversity cases, even if evidence is excluded that would otherwise be admitted. See McDowell v. Brown , 392 F.3d 1283, 1295 (11th Cir. 2004) ; Wray v. Gregory , 61 F.3d 1414, 1417-19 (9th Cir. 1995) ; Stonehocker v. General Motors Corp. , 587 F.2d 151, 155-56 (4th Cir. 1978) ; Conway v. Chemical Leaman Tank Lines, Inc. , 540 F.2d 837, 838 (5th Cir. 1976).

An example of a state evidence rule that federal courts follow to avoid undermining a state substantive rule is exclusion of evidence of a payment received by an accident victim from a collateral source in states that substantively prohibit a reduction of damages because of such a payment. Perry v. Allegheny Airlines , Inc. , 489 F.2d 1349, 1352 (2d...