Thiele v. DSM Food Specialties, U.S.

• Decision Date: 10 January 2022
• Docket Number: C18-4081-LTS
• Court: U.S. District Court — Northern District of Iowa
• Parties: JASON THIELE, Plaintiff, v. DSM FOOD SPECIALTIES, USA, INC., et al., Defendants.

JASON THIELE, Plaintiff,
v.
DSM FOOD SPECIALTIES, USA, INC., et al., Defendants.

No. C18-4081-LTS

United States District Court, N.D. Iowa, Western Division

January 10, 2022

MEMORANDUM OPINION AND ORDER

Leonard T. Strand, Chief Judge

I. INTRODUCTION

This matter is before me on a motion (Doc. 315) for summary judgment by defendant Givaudan Flavors Corporation (Givaudan). Plaintiff Jason Thiele has filed a resistance (Doc. 361) to the motion and Givaudan has filed a reply. Doc. 381. Givaudan has also filed the following motions to exclude expert testimony:

• Doc. 308 - Motion to Exclude the Testimony and Opinions of Plaintiffs Expert Timur Durrani, M.D., as to General Causation and Warnings Related to 2, 3-Pentanedione and 2, 3-Hexanedione

• Doc. 309 - Motion to Exclude the Testimony and Opinions of Plaintiffs Expert Robert Harrison, M.D. as to General Causation

• Doc. 311 - Motion to Exclude the Testimony and Opinions of Plaintiffs Expert Charles Pue, M.D. as to Specific Causation

• Doc. 312 - Motion to Exclude Dr. Harrison's Testimony and Opinions as to Warnings

• Doc. 313 - Motion to Exclude the Testimony and Opinions of Plaintiffs Experts William H. Rogers, Ph.D. and John O. Ward, Ph.D

• Doc. 314 - Motion to Exclude the Testimony and Opinions of Plaintiffs

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Expert Katie Allison, PT, MS, CLCP

• Doc. 387 - Motion in Limine to Exclude the Testimony and Opinions of Gregory B. Diette, M.D

Thiele has filed responses to each motion. See Docs. 337-339, 341-343, 391. Givaudan has filed replies to all but the motion in limine. See Docs. 347, 349-353. Givaudan has also provided notice (Doc. 394) of supplemental authority in support of its motions to exclude the testimony and opinions of Dr. Durrani and Dr. Harrison and its motion for summary judgment. Oral argument is not necessary. See Local Rule 7(c).

II. BACKGROUND AND PROCEDURAL HISTORY

Thiele filed his complaint on September 12, 2018, alleging diversity jurisdiction under 28 U.S.C. § 1332. He asserts claims of negligence (Count I), strict product liability - design, manufacturing and inherent defects (Count II), strict product liability - failure to warn (Count III) and strict product liability - failure to instruct (Count IV). Doc. 1. Thiele alleges he developed “flavoring-related bronchiolitis obliterans syndrome” or “flavoring-related lung disease” from occupational exposure to flavors containing the ingredients diacetyl, 2, 3-pentanedione (2, 3-PD) and 2, 3-hexanedione (2, 3-HD) while working at American Pop Corn Company (APC) from March 2004 to May 2011. Although Thiele's complaint named numerous defendants, all but Givaudan have been dismissed throughout the course of this case.

III. DISCUSSION

A. Motions to Exclude Expert Testimony and Opinion

1. Timur Durrani, M.D. - Doc. 308

Givaudan seeks to exclude the expert testimony and opinions of Dr. Durrani pursuant to Federal Rules of Evidence 402, 403, 702 and 703. Specifically, it seeks to exclude his testimony and opinions as to general causation and warnings related to 2, 3-

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PD and 2, 3-HD. See Docs. 308, 318. Dr. Durrani has opined that (a) 2, 3-PD and 2, 3-HD can cause bronchiolitis obliterans (BO) and other lung disease and (b) that the defendants should have known, by at least 2002, that 2, 3-PD and 2, 3-HD were capable of causing BO and other lung disease.

Givaudan notes that in 2000, the National Institute for Occupational Safety and Health (NIOSH) became aware of several former employees of a microwave popcorn facility in Jasper, Missouri, who had been diagnosed with BO. NIOSH was unable to confirm the diagnoses or determine the exact cause of their lung conditions but suspected that the ingredient diacetyl in the butter flavor might be associated with the BO diagnosed in the former workers. BO is a rare, medically-recognized respiratory condition that is found almost exclusively in lung transplant patients as a known complication. Former popcorn plant employees generally do not meet the diagnostic criteria of BO. Dr. Charles Pue, Thiele's specific causation expert, created a diagnosis to reflect the flavoring-related component, which has undergone various name changes, but is now referred to as “flavoring-related lung disease (FRLD).^[1]

The parties agree that Thiele must prove general and specific causation through expert testimony to prevail on his claims. Givaudan argues Dr. Durrani's general causation opinion should be excluded because:

a) he conceded that he was not offering any opinions related to FRBOS

b) not a single study he relies on concludes that 2, 3-PD or 2, 3-HD can cause BO (or any other lung disease)

c) he lacks the requisite knowledge and basis on which to render any general causation opinion with respect to 2, 3-PD or 2, 3-HD because he admits that he cannot satisfy the two required elements of such an opinion, i.e., he does not know the level of exposure to 2, 3-PD or 2, 3-HD that is capable of causing harm or Thiele's actual level of exposure to 2, 3-PD or 2, 3-HD

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Givaudan also seeks to exclude Dr. Durrani's opinion that defendants should have known by 2002 that 2, 3-PD and 2, 3-HD could cause BO.

a. Applicable Standards

Federal Rule of Evidence 702 governs the admission of expert testimony. The rule states that a qualified expert may testify “in the form of an opinion or otherwise” if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case

Fed. R. Evid. 702. To be admissible, expert testimony must be both relevant and reliable. Weisgram v. Marley Co., 169 F.3d 514, 517 (8th Cir. 1999), aff'd, 528 U.S. 440 (2000). Evidence is relevant if it tends to make a fact more or less probable and is of consequence in determining the action. Fed.R.Evid. 401. Evidence is reliable if it is useful to the fact finder in deciding an ultimate issue of fact, the expert is qualified and the expert's evidence is reliable. Peters v. Woodbury Cnty., 979 F.Supp.2d 909, 919 (N.D. Iowa 2013), aff'd sub nom. Peters v. Risdal, 786 F.3d 1095 (8th Cir. 2015).

Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the district court must perform a “gatekeeping function” to ensure that irrelevant or unreliable expert testimony is not introduced into evidence. See, e.g., In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2001). The trial court has broad discretion when determining the reliability of expert testimony. United States v. Vesey, 338 F.3d 913, 916 (8th Cir. 2003). Doubts as to whether the testimony will be helpful should be resolved in favor of admissibility. See Shuck v. CNH America, LLC, 498 F.3d 868, 874 (8th Cir. 2007) (Rule 702 “is one of admissibility rather than exclusion.)” (citation omitted)); Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100

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(8th Cir. 2006) (“‘[R]ejection of expert testimony is the exception rather than the rule.'” (quoting Fed.R.Evid. 702 advisory committee's note)).

When considering expert testimony, the court must determine whether the testimony is both reliable and relevant. See Barrett v. Rhodia, Inc., 606 F.3d 975, 980 (8th Cir. 2010) (citing Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757 (8th Cir. 2006)).

To satisfy the reliability requirement, the party offering the expert testimony “must show by a preponderance of the evidence both that the expert is qualified to render the opinion and that the methodology underlying his conclusions is scientifically valid.” Daubert, 509 U.S. at 589-90. To satisfy the relevance requirement, the proponent must show that the expert's reasoning or methodology was applied properly to the facts at issue.

Khoury v. Philips Med. Sys., 614 F.3d 888, 892 (8th Cir. 2010) (citation omitted, cleaned up). Factors bearing on the admissibility of expert evidence include:

(1) whether the theory or technique applied can be tested, (2) whether the theory or technique has been subject to peer review and publication, (3) the known or potential rate of error, and (4) whether it is accepted in the relevant discipline.

Kuhn v. Wyeth, Inc., 686 F.3d 618, 625 (8th Cir. 2012) (citing Daubert, 509 U.S. at 593-94). The court may also consider “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.” Presley v. Lakewood Eng'g & Mfg. Co., 553 F.3d 638, 643 (8th Cir. 2009) (citation omitted). “While weighing these factors, the district court must continue to function as a gatekeeper who ‘separates expert opinion evidence based on ‘good grounds' from subjective speculation that masquerades as scientific knowledge.'” Presley, 553 F.3d at 643 (citation omitted).

“Expert testimony is inadmissible where . . . it is excessively speculative or unsupported by sufficient facts.” Onyiah v. St. Cloud State Univ., 684 F.3d 711, 720

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(8th Cir. 2012) (citation omitted); see also Marmo, 457 F.3d at 757 (“Expert testimony is inadmissible if it is speculative, unsupported by sufficient facts, or contrary to the facts of the case.”); J.B. Hunt Transp., Inc. v. Gen. Motors Corp., 243 F.3d 441, 444 (8th Cir. 2001) (“Expert testimony that is speculative is not competent proof and contributes nothing to a legally sufficient evidentiary basis.”) (citation omitted)). An expert's opinion should be excluded only if it “‘is so fundamentally unsupported that it can offer no assistance to the...