Wintz By and Through Wintz v. Northrop Corp.
| Citation | 110 F.3d 508 |
| Decision Date | 04 April 1997 |
| Docket Number | No. 96-1161,96-1161 |
| Parties | 46 Fed. R. Evid. Serv. 1081, Prod.Liab.Rep. (CCH) P 14,918 Jessica WINTZ, a minor By and Through her next friends, Van WINTZ and Jill C. Wintz, Jill C. Wintz, Individually, and Van Wintz, Individually, Plaintiffs-Appellants, v. NORTHROP CORPORATION and Eastman Kodak Company, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Paul W. Grauer (argued), Randall W. Graff, Grauer & Associates, Schaumburg, IL, for Jessica Wintz, Jill C. Wintz, Van Wintz.
David L. Doyle, Thomas P. Cimino, Jr., Vedder, Price, Kaufman & Kammholz, Chicago, IL, for Northrop Corporation.
Mark A. Brand (argued), James T. Hultquist, Brand & Novak, Chicago, IL, for Eastman Kodak Company.
Before COFFEY, FLAUM and MANION, Circuit Judges.
Plaintiffs-appellants Van Wintz and Jill Wintz, both individually and on behalf of their daughter Jessica (the "Wintzes"), appeal the district court's order granting the jointly-filed motion for summary judgment of defendants-appellees Northrop Corporation ("Northrop") and Eastman Kodak Company ("Kodak"). The Wintzes sought damages for injuries allegedly suffered by Jessica as a result of her in utero exposure to the chemical bromide, allegedly contained in photographic developing material manufactured by Kodak and used by Jill Wintz in the course of her employment with Northrop. The questions presented are whether the district court erred in excluding the proffered testimony of a toxicologist hired by the Wintzes, and whether, absent that testimony, the Wintzes failed to establish a genuine issue of fact as to whether exposure to bromide caused injury to Jessica. We affirm.
Prior to and during her pregnancy with Jessica, Jill Wintz was employed by Northrop as an Industrial Engineer Associate in Northrop's Defense Systems Division. Her employment with Northrop began in May 1979, and continued through March 1982. From March 1980 through October 1980, while she was pregnant, Jill's duties involved the mixing of certain chemicals manufactured by Kodak to develop photographic film used in the manufacturing process of the "black box" for jet fighter aircraft. One of these chemicals, Kodalith Developer B, contained bromide. The chemicals came in powdered form in paper-type bags, and Jill poured them from the bag into a container for mixing with water. During this process, the powder from the bags would create a dust in the air, and Jill alleges that she inhaled this dust while mixing the chemicals. According to Jill's affidavit, she was "never given or advised to use any type of protective breathing mask or other protective equipment during mixing or use of the chemical powders." Jill Wintz worked in this capacity for Northrop from March 1980 until she took a maternity leave of absence on October 31, 1980, approximately five weeks before giving birth to Jessica, and she mixed the chemicals on a daily basis during this period.
Jessica was born at Lutheran General Hospital in Park Ridge, Illinois on December 6, 1980, and shortly thereafter she began displaying a number of atypical symptoms for newborns. Most noticeably, according to the deposition of Dr. Henry Mangurten, a neonatologist who treated Jessica at that time, she displayed hypotonia (low muscle tone), poor sucking reflexes, and weak or infrequent cry, as well as abnormal facial features. When she was but four days old, the baby was placed in a neonatal intensive care unit and came under Dr. Mangurten's care. In an effort to determine the cause of these abnormal behavioral symptoms, Dr. Mangurten ordered a variety of tests but they came back inconclusive, at which time the specialist saw fit to interview and gain additional background information from Jill Wintz. Upon learning that Jill worked in an environment in which bromide was present, Dr. Mangurten, based on his previous experience in which he had treated a baby with elevated bromide levels and who had displayed symptoms similar to Jessica's, ordered a bromide test on the baby. A urine sample was obtained when she was 11 days old and prior to learning the results of this test, Jessica's condition showed signs of improvement and she was released from the neonatal intensive care unit when she was but 13 days old. Shortly thereafter, the test revealed elevated levels of bromide in Jessica's system. The doctor, at this time, ordered another urine sample taken when Jessica was 20 days old and this test again revealed the presence of bromide in her system but at a decreased level. This time, Dr. Mangurten also ordered a bromide test on her mother, Jill, which also revealed elevated bromide levels in her system as well.
Dr. Mangurten stated that Jessica's condition had improved somewhat, though not entirely, at the time she was released from the neonatal intensive care unit. According to Dr. Mangurten, Jessica's condition was tracked for roughly four years after she left Lutheran General pursuant to a follow-up program the hospital maintains for infants who have spent time in the neonatal intensive care unit. In an affidavit, Dr. Barbara Burton, Director for the Center of Medical and Reproductive Genetics at Michael Reese Hospital in Chicago, who reviewed Jessica's complete medical records, stated that Jessica has continued to display abnormal symptoms through the present, including strabismus (deviation of the eye), myopia, frequent upper respiratory infections, enamel defects in her teeth, and delayed development in mental and physical milestones. Dr. Burton, who is an expert in genetics and genetic disorders, opined in her affidavit that Jessica's symptoms are all "classical" symptoms of a person afflicted with a genetic disorder known as Prader-Willi Syndrome ("PWS"). 1
In the course of her follow-up care after being discharged, it was learned (and is not disputed by the Wintzes) that Jessica was in fact born with PWS. PWS is caused by a deletion of genetic material from the father's chromosomes. It is a purely genetic disorder which occurs prior to conception, and it cannot be caused by environmental exposure. 2 As the Wintzes have acknowledged, all of the abnormal symptoms Jessica has experienced throughout her life are very similar, if not identical, to those experienced by children with PWS. During his deposition, Dr. Mangurten agreed with the statement that Jessica's developmental problems have "almost certainly" been caused by PWS.
In addition to Dr. Mangurten, the Wintzes listed Gilbert Elenbogen ("Elenbogen"), a toxicologist, as an expert witness. 3 The Wintzes asserted that Elenbogen would testify that exposure to bromide caused Jessica's abnormalities. Elenbogen opined in an affidavit that Jill Wintz's exposure to bromide while mixing the photographic chemicals caused Jessica to be exposed to bromide, and that this exposure, as stated in Elenbogen's affidavit, "caused the child's symptoms at birth and her permanent developmental damage and problems." Elenbogen did acknowledge that Jessica had PWS, and that her symptoms which he attributed to her prenatal exposure to bromide were identical to those caused by PWS. No other expert testified for the Wintzes on the issue of causation.
Kodak and Northrop filed a combined motion for summary judgment after deposing Elenbogen and Mangurten. They argued that Elenbogen's testimony was inadmissible under Rule 702 of the Federal Rules of Evidence as interpreted by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). They argued that the toxicologist Elenbogen was not a licensed physician and surgeon and lacked sufficient experience with bromide or with PWS, and was thus not qualified to render an opinion as an expert as to the cause of Jessica's injuries. Northrop and Kodak further argued that, because Elenbogen's opinion that bromide caused Jessica's injuries was inadmissible due to his lack of qualifications, and because Dr. Mangurten agreed in his deposition testimony that PWS was the cause of Jessica's developmental problems, the Wintzes failed to establish a genuine issue of material fact as to whether bromide exposure was a proximate cause of any of Jessica's abnormalities. In a memorandum opinion dated December 21, 1995, 1995 WL 758114, the district judge agreed with Kodak and Northrop. The district court entered a summary judgment order in favor of Kodak and Northrop on December 21, and the Wintzes appealed.
Under Illinois law (which the parties agree is applicable to this diversity case), the Wintzes bore the burden of establishing the essential elements of their claim, including proximate cause. See Korando v. Uniroyal Goodrich Tire Co., 159 Ill.2d 335, 202 Ill.Dec. 284, 288-89, 637 N.E.2d 1020, 1024-25 (1994). Thus, summary judgment in favor of Kodak and Northrop was proper if the Wintzes failed to designate evidentiary materials sufficient to demonstrate the existence of a genuine issue of fact as to any essential element of their claim, including proximate causation. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); see generally Porter v. Whitehall Laboratories, Inc., 9 F.3d 607, 612 (7th Cir.1993). 4 We review de novo the district court's grant of summary judgment. Porter, 9 F.3d at 612.
Trial judges enjoy wide latitude and discretion when determining whether to admit expert testimony, and the district court's decision concerning admissibility of such testimony (provided it follows the Daubert methodology) will not be disturbed unless "manifestly erroneous." Bradley v. Brown, 42 F.3d 434, 436-37 (7th Cir.1994) (citing Cella v. United States, 998 F.2d 418, 423 (7th Cir.1993)). Thus, in reviewing the district judge's disposition of this case, initially we consider under the deferential "manifestly erroneous" standard whether the exclusion of...
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