Stead v. FE Myers Co., Div. of McNeil Corp., Civ. No. 89-169.
| Decision Date | 26 November 1990 |
| Docket Number | Civ. No. 89-169. |
| Parties | Craig F. STEAD and Elizabeth Mueller Stead, Plaintiffs, v. F.E. MYERS CO., DIVISION OF McNEIL CORPORATION, Defendant. |
| Court | U.S. District Court — District of Vermont |
Kenneth Fisher, Wilmington, Vt., Alan C. Milstein, Mesirov, Gelman, Jaffe, Cramer & Jamieson, Philadelphia, Pa., for plaintiffs.
Craig F. Stead and Elizabeth M. Stead, pro se.
Harry R. Ryan, III, Ryan, Smith & Carbine, Ltd., Rutland, Vt., Thomas Parker, Roetzel & Andress, Akron, Ohio, for defendant.
On November 5, 1990, defendant F.E. Myers Co. (Myers) moved this court for an order in limine preventing the presentation of testimony by plaintiffs Craig F. Stead and Elizabeth M. Stead (Steads) relating to any increased risk of cancer resulting from their alleged exposure to oil from their F.E. Myers submersible pump. The court, pursuant to Local Rule 5(A), declines to hear oral argument on the motion.
The Steads commenced this action on June 7, 1989, alleging negligence, breach of warranty, strict liability, and violation of Vermont's Groundwater Protection Act, 10 V.S.A. ch. 48, § 1390 et seq. In the complaint, the Steads alleged that, inter alia, "plaintiffs will continue to suffer injury and damage including the cost of medical monitoring." No mention is made in the complaint of a claim for damages resulting directly from an increased risk of cancer due to the alleged exposure.
Myers seeks to prevent the testimony of two of the Steads' expert witnesses, G. John DiGregorio, M.D., and Robert Rutman, Ph.D., concerning any increased risk of cancer due to the alleged exposure to pump oil. Myers states two grounds in support of its motion: (1) The Steads' experts cannot quantify to a reasonable degree of medical certainty the increased risk of cancer that the Steads' may experience, and (2) The Steads failed to disclose in their answers to expert interrogatories that either of the experts would testify at trial to the alleged carcinogenic effects on the Steads from the alleged exposure.
It is clear from the cases cited by the parties in their supporting memoranda that if the Steads were to assert any claim for damages resulting directly from an increased risk of cancer due to the alleged exposure to pump oil, they would be required to show that to a reasonable degree of medical certainty the Steads were more likely than not to develop cancer as a result of that exposure. According to their depositions, neither of the experts in question are able to so testify.
However, as the Steads point out, there has been no assertion of a claim for damages stemming directly from an increased risk...
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