HIGGINS et al v. KOCH DEVELOPMENT CORPORATION
ENTRY granting in part and denying in part Defendant's 110 Motion to exclude Dr. Margherita; granting Defendant's 155 Motion to Strike Plaintiffs' untimely response. Signed by Judge Richard L. Young on 12/3/2013. (PG)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
KENT HIGGINS and JENNIFER
HIGGINS, Individually and as Parents
and Natural Guardians, and Next Friend
on behalf of AH and NH, Minors, and
JOHN TAYLOR and SARAH TAYLOR,
Individually and as Parents and Natural
Guardians, and Next Friend on behalf of
JT, A Minor, and RACHEL TAYLOR,
CORPORATION d/b/a Holiday World &
ENTRY ON DEFENDANT’S MOTION TO EXCLUDE EXPERT TESTIMONY
Plaintiffs, Kent and Jennifer Higgins, individually and on behalf of their minor
children, AH and NH, along with John and Sarah Taylor, individually and on behalf of
their minor child, JT, and the Taylor’s adult child, Rachel Taylor, brought this suit
against Defendant, Koch Development Corporation, d/b/a Holiday World & Splashin’
Safari. Plaintiffs allege that Defendant improperly maintained its chemical filter pumps
and electrical breakers, causing Plaintiffs to suffer serious injuries. Defendant seeks to
bar the expert testimony of Dr. Anthony Margherita, who examined Kent Higgins,
Rachel Taylor, and Sarah Taylor. For the reasons set forth below, Defendant’s motion is
GRANTED IN PART and DENIED IN PART.1
On June 20, 2009, Plaintiffs visited Holiday World & Splashin’ Safari and used
the river attraction, “Bahari River.” (Compl. ¶ 10). This attraction was 1,100 feet long
and 20 feet wide. (Id.). A filter pump connected to a breaker filtered muriatic acid and
liquid bleach into the water. (Id.). The breaker that controlled this pump was tripped and
shut off. (Id. at ¶ 11). Plaintiffs allege that Defendant’s employee then negligently
turned the breaker back on without checking the amount of muriatic acid and liquid
bleach that would be released, causing a high concentration of the acid and bleach to be
released into the river. (Id. at ¶ 12). During this time, Plaintiffs were swimming and
lying in the river and, as a result, they suffered serious personal injuries and have
developed breathing disabilities. (Id. at ¶¶ 13, 15-22).
On May 9, 2011, Plaintiffs filed this action against Defendant, claiming that its
conduct caused their bodily injuries. Plaintiffs subsequently endorsed Dr. Margherita as
On July 26, 2013, Rachel and Sarah Taylor filed a supplemental response brief “to provide the
Court with more detailed information.” (Docket # 151). They filed this brief two weeks after
Defendant filed its Reply brief. The court’s local rules do not contemplate sur-replies without
leave of the court. S.D. IND. L.R. 7.1(c). Thus, the court hereby STRIKES the supplemental
response as improperly filed.
Similarly, on July 31, 2013, Kent Higgins filed an individual response brief, in which he
incorporated Rachel and Sarah Taylor’s initial response brief and provided additional
information. (Docket # 152). Defendant moved to strike this response as untimely, and
Plaintiffs did not respond. (Docket # 155). Accordingly, the court treats Kent Higgins’
individual brief as a sur-reply without leave of the court, also in violation of Local Rule 7.1(c).
Thus, the court GRANTS Defendant’s motion to strike Kent Higgins’ individual response brief
and will consider only Rachel and Sarah Taylor’s initial response in deciding this motion.
a medical expert in this matter to testify regarding his examinations of Kent Higgins,
Rachel Taylor, and Sarah Taylor and give opinions regarding the effect the injuries
sustained on June 20, 2009, have on their ability to work and their need for future
Dr. Margherita attended Georgetown University for both his undergraduate studies
and medical school. (Deposition of Dr. Anthony Margherita (“Margherita Dep.”) 17:1217). He is a board certified physiatrist who completed his residency at the University of
California at Davis. (Id. at 17:18-18:3). He specializes in physical medicine and
rehabilitation and has been practicing for 23 years. (Id. at 17:22-18:15). He has served
as an Assistant Professor of Physical Medicine and Rehabilitation Medicine at
Washington University; Associate Professor in the Departments of Neurology and
Orthopedic Surgery at Washington University; and Assistant Professor in the Department
of Rehabilitation Medicine at the University of Washington. (Def.’s Ex. B, Dr.
Margherita’s Curriculum Vitae).
Dr. Margherita examined Kent Higgins on August 5, 2012, and Sarah and Rachel
Taylor on August 7, 2012, to determine each patient’s “level of impairment.” (Def.’s
Exs. C, D, and E). Dr. Margherita’s examination for each individual included a “review
of medical records . . . , direct questioning of the patient, and a comprehensive physical
Based on this analysis, Dr. Margherita concluded that Kent Higgins “suffers from
a severe form of reactive airway disease that is the direct result of his exposure to
chlorine at the Holiday World water park.” (Def.’s Ex. C at 5). Specifically, Higgins
experienced shortness of breath with exertion, changes in temperature, and exposure to
airborne fumes; as a result, Higgins must use medications and fast-acting inhalers to
remain relatively functional. (Id.). To that end, Dr. Margherita concluded that Higgins’
“work and avocational activities have been significantly affected by his condition.” (Id.).
Based on Higgins’ lung function, he recommended Higgins “discontinue his outside
occupation and seek alternative employment in an indoor, air conditioned environment.”
(Id.). Lastly, Dr. Margherita concurred with the opinions of Higgins’ treating pulmonary
physician, Dr. Linda Haacke, that Higgins will likely remain impaired for the remaining
years of his life and will require chronic treatment with medications and inhalers. (Id.).
Similarly, Dr. Margherita concluded, chiefly, that Sarah Taylor “suffers from a
moderate form of reactive airway disease that is the direct result of her exposure to
chlorine at the Holiday World water park.” (Pls.’ Ex. 3 at 4). Because of this condition,
Dr. Margherita concluded that she must use medications and inhalers to remain relatively
functional. (Id.). Dr. Margherita further stated that Sarah Taylor would “need to work in
an air conditioned temperature controlled environment with limited exposure to airborne
irritants.” (Id.). And Dr. Margherita agreed with Sarah Taylor’s treating physician, Dr.
Trudy Shady, that Sarah Taylor will likely remain impaired for the remaining years of her
life and would require chronic treatment with medications. (Id.).
Finally, Dr. Margherita concluded that Rachel Taylor “suffers from a moderate
form of reactive airway disease that is the direct result of her exposure to chlorine gas at
the Holiday World water park.” (Def.’s Ex. E at 3). As a result, he found she must use
medications and inhalers to remain relatively functional, though she would be limited in
her ability to engage in any specific outdoor occupation. (Id. at 3-4). Moreover, Dr.
Margherita concurred with Rachel Taylor’s treating physician, Dr. Shady, just as he had
with the other treating physicians. (Id. at 4).
After Dr. Margherita completed these examinations, Plaintiffs’ counsel sent him
six reference articles to review which explained “the cause and effect relationship of
chlorine gas exposure and lung/heart injuries.” (Def.’s Ex. F). Further, Plaintiffs’
counsel requested that he add an addendum explaining this relationship to any reports
which had already been finalized. (Id.). Consequently, Dr. Margherita discussed this
medical literature in Rachel Taylor’s report and in a supplemental report for Sarah
Taylor. In sum, Dr. Margherita concluded that the literature supported his opinions that
exposure to chlorine gas is the direct cause of Rachel and Sarah Taylor’s present
pulmonary disease. (Def.’s Ex. E, Pls.’ Ex. 3).
Based upon his examinations and review of medical records, Plaintiffs argue that
Dr. Margherita should be permitted to render the following opinions: (1) he concurs with
the treating pulmonologist, Dr. Shady, regarding the injuries suffered by Rachel and
Sarah Taylor; (2) Rachel and Sarah Taylor should take the medications outlined by Dr.
Shady; (3) Plaintiffs should avoid any work environment where they would be exposed to
airborne irritants; and (4) a causal relationship exists between exposure to chlorine gas
and the respiratory injuries suffered by Plaintiffs. Defendant moves to exclude these
opinions in their entirety.
A federal court exercising diversity jurisdiction must apply state law to substantive
issues, but the admissibility of expert testimony in diversity suits is governed by the
Federal Rules of Evidence. Stutzman v. CRST, Inc., 997 F.2d 291, 295 (7th Cir. 1993).
In particular, Rule 702 of the Federal Rules of Evidence (“Rule 702”) and the principles
set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), govern
the admissibility of expert testimony. Smith v. Ford Motor Co., 215 F.3d 713, 717-18
(7th Cir. 2000). Rule 702 states:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education 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.
The court must ensure “that an expert’s testimony both rests on a reliable
foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597. To that end,
the Seventh Circuit has set forth a three-step analysis: (1) the witness must be qualified as
an expert by knowledge, skill, experience, training, or education; (2) the expert’s
reasoning or methodology underlying the testimony must be scientifically reliable; and
(3) the testimony must assist the trier of fact to understand the evidence or determine a
fact in issue. Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007)
(citations and internal quotations omitted). The party proffering the expert testimony
must show these factors by a “preponderance of proof.” United States v. Allen, 207 F.
Supp. 2d 856, 869 (N.D. Ind. 2002) (citing Daubert, 509 U.S. at 592 n. 10).
Here, Defendant principally challenges Dr. Margherita’s qualifications and the reliability
of his opinions.
An expert may be qualified by “knowledge, skill, experience, training, or
education.” FED. R. EVID. 702. For example, “extensive academic and practical
expertise” in an area is sufficient to qualify a potential witness as an expert. Bryant v.
City of Chicago, 200 F.3d 1092, 1098 (7th Cir. 2000). Additionally, testimony may be
admitted by experts whose knowledge is based on experience. Smith, 215 F.3d at 718.
Hence, “a court should consider an expert’s full range of practical experience as well as
academic or technical training when determining whether the expert is qualified to render
an opinion in a given area.” Id. Because simply possessing a medical degree does not
qualify Dr. Margherita as an expert in all medical fields, the court examines the
qualifications of Dr. Margherita as to each proposed opinion. See Baldauf v. Davidson,
No. 1:04-cv-1571, 2007 WL 2155967, at *3 (S.D. Ind. July 24, 2007).
1. Concurring with Pulmonologist
Defendant argues that Dr. Margherita is not qualified because he neither has
training nor experience in pulmonology; accordingly, Defendant claims he is giving
testimony outside his expertise of physical medicine and rehabilitation. Indeed, Dr.
Margherita is not board certified in pulmonology, nor does he have any specialized
training or education in that field. (Margherita Dep. 103:1-6). Although Dr. Margherita
has done some research in exercise physiology and worked with pulmonologists in the
past, the field of pulmonology is not part of his current medical practice, nor has it ever
been a part aside from research early in his academic career. (Id. at 101:3-14; 103:1420). Because of this lack of experience, he would typically refer a patient to a
pulmonologist where a lung injury was the primary source of her impairment. (Id. at
Nonetheless, Plaintiffs maintain that Dr. Margherita should be able to testify that
he concurs with treating pulmonologist, Dr. Shady, regarding (1) the injuries suffered by
Rachel and Sarah Taylor, and (2) the medications prescribed to them. Plaintiffs concede,
however, that Dr. Margherita is not being endorsed as a pulmonologist. As a result,
Plaintiffs are offering a doctor without any academic expertise and little experience in a
medical field to concur with the opinions of a specialist. This provides little, if any, value
to the trier of fact. Dr. Margherita therefore does not have a sufficient foundation for
concurring with a pulmonologist’s opinions, so his endorsement of Dr. Shady’s opinions
2. Impact Injuries have on Ability to Work
Plaintiffs further contend that although Dr. Margherita is not offered as a
pulmonologist, he is still qualified to testify as to how these respiratory injuries will
impact Plaintiffs’ lives and their ability to work. In fact, Dr. Margherita has treated
patients for issues of chemical or environmental exposures. (Id. at 101:15-20). And this
treatment mostly related to their functional performance, work activities, and potential for
rehabilitation. (Id. at 102:6-10). For example, Dr. Margherita testified that in his
expertise as a physiatrist, he is asked on a “fairly regular basis” whether a patient can “do
their prior employment, can they do any employment . . . [and] in what circumstances
would they be functionally capable of engaging in whatever their activity is . . . .” (Id. at
77:11-23). In other words, he focused on the vocation and avocation aspects of a
patient’s treatment. (Id. at 102:11-15). Based on this experience, Plaintiffs argue Dr.
Margherita may testify as to how Plaintiffs’ injuries have affected their ability to work
and other limitations.
The court agrees. Dr. Margherita has relevant experience treating patients
exposed to chemical exposures, as allegedly occurred here, and this treatment focused on
their functional performance, as Plaintiffs seek to rely on here. Accordingly, Dr.
Margherita has established a sufficient foundation to testify as to these issues.
3. Costs of Medications and Doctor Visits
Plaintiffs also claim Dr. Margherita should be able to testify as to the
“reasonableness of the costs of the medications and doctor’s visits” because “physiatrists
frequently are the professionals that approve life care plans.” Plaintiffs fail to cite to any
evidence in the record supporting this statement. And Dr. Margherita did not testify to
any independent knowledge of costs of medications or doctor’s visits. By contrast, he
stated that he only “occasionally” prescribes inhalers for patients that are undergoing
treatments for other conditions and would typically refer them to a pulmonologist for
more “chronic or steroid based [prescriptions].” (Id. at 52:7-18). In fact, Dr.
Margherita’s only knowledge of the Taylors’ prescription needs and dosages derives
from Dr. Shady’s report, along with a printout provided by Plaintiffs’ counsel detailing
medications and average retail costs. (Id. at 99:14-21). Indeed, Dr. Margherita did not
independently verify those costs. (Id. at 99:19-21). This alone discredits his testimony.
See MDG Int’l, Inc. v. Australian Gold, Inc., No. 1:07-cv-1096, 2009 WL 1916728, at *5
(S.D. Ind. June 29, 2009) (“An expert must independently verify facts given to him,
rather than ‘accepting [them] at the word of ... counsel.’” (citation omitted)). At its core,
Plaintiffs are arguing that simply because Dr. Margherita is a doctor, he can testify as to
the costs of medications and doctor bills. This is not enough to create a sufficient
foundation to testify about these topics. Accordingly, he is excluded from testifying
about these issues.
4. Causal Relationship Between Chlorine Exposure and
Lastly, Plaintiffs contend that Dr. Margherita may testify about the causal
relationship between exposure to chlorine gas and the respiratory injuries suffered by
Plaintiffs. Defendant argues that the only knowledge he has in this area is derived from
medical articles which Plaintiffs’ counsel provided to him after he examined the
Plaintiffs. In fact, the letter from counsel accompanying these articles stated, “If your
report has been finalized, I would request that you add an addendum explaining the cause
and effect relationship of chlorine gas exposure and lung/heart injuries.” (Def.’s Ex. F).
Defendant further argues that Plaintiffs have not shown how Dr. Margherita’s training in
physical medicine demonstrates expertise in chlorine gas exposure.
As an initial matter, the court must be wary that experts are not simply parroting
the opinions of counsel. See King-Indiana Forge, Inc. v. Millennium Forge, Inc., No.
1:07-cv-00341, 2009 WL 3187685, at *2 (S.D. Ind. Sept. 29, 2009) (“When an expert’s
proffered opinion merely parrots information provided to him by a party, that opinion is
generally excluded.”). This is particularly true here, where counsel has provided medical
literature to the expert and asked him to include such information in his report.
Nonetheless, the articles provided by Plaintiffs’ counsel did not alter the conclusions of
Dr. Margherita’s report; rather, they provided additional support for his initial
conclusions. (Pls.’ Ex. 3 at 6). Although the timing of reviewing the literature would no
doubt open Dr. Margherita up to vigorous cross-examination, it cannot be said that Dr.
Margherita is simply parroting the information provided by counsel. Accordingly, the
court will consider these articles as part of the foundation Dr. Margherita used in forming
his opinions. But see Baldauf, 2007 WL 2155967, at *4 (stating that even though doctor
reviewed articles in peer-reviewed journals on the effects of a drug, this alone would not
qualify him as an expert in the subject).
In addition to reviewing these articles, Dr. Margherita has experience treating
patients for chemical and environmental exposures. (Margherita Dep. 101:15-20). It is
unclear to what extent Dr. Margherita has dealt specifically with chlorine exposure in this
treatment, but again that is something which may be assailed by cross examination. See
Daubert, 509 U.S. at 596 (“Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.”). Though Dr.
Margherita’s qualifications in this area leave much to be desired, the court will assume
arguendo that he has satisfied this requirement. See Allstate Ins. Co. v. Maytag Corp.,
No. 98 C 1462, 1999 WL 203349, at *3 (N.D. Ill. Mar. 30, 1999) (“Questions about the
qualifications of an expert witness should be considered in assessing the credibility and
weight of the opinions offered, and should not serve to exclude them altogether”). As
will be seen below, however, the methodology he used was not scientifically reliable and
thus this testimony will be excluded on those grounds.
The court’s analysis, however, does not end with the conclusion that an expert is
qualified to testify about a given matter. Indeed, “[e]ven a ‘supremely qualified expert
cannot waltz into the courtroom and render opinions unless those opinions are based
upon some recognized scientific method.’” Smith, 215 F.3d at 718 (citation omitted).
Specifically, an “expert’s work is admissible only to the extent it is reasoned, uses the
methods of the discipline, and is founded on data. Talking off the cuff – deploying
neither data nor analysis – is not an acceptable methodology.” Lang v. Kohl’s Food
Stores, Inc., 217 F.3d 919, 924 (7th Cir. 2000); see also Comer v. Am. Elec. Power, 63 F.
Supp. 2d 927, 933 (N.D. Ind. 1999) (finding the court must “rule out subjective belief and
speculation”). At bottom, “[t]he fundamental purpose of this gatekeeping requirement ‘is
to make certain that an expert, whether basing testimony on professional studies or
personal experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.’” Comer, 63 F.Supp.2d at
932 (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999)). To that
end, the court must determine whether the opinions are grounded in the methods and
procedures of science and whether such testimony has sufficient factual underpinnings.
Bourelle v. Crown Equip. Corp., 220 F.3d 532, 536 (7th Cir. 2000).
In making this determination, the court is guided by the factors set forth in
(1) Whether a 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; (4) the
existence and maintenance of standards controlling the technique’s
operation; and (5) whether the technique or method has been met
with general acceptance.
Daubert, 509 U.S. at 593-94. These factors are used to evaluate “all expert testimony,
whether it relates to an area of traditional scientific competence or whether it is founded
on engineering principles or other technical or specialized expertise.” Smith, 215 F.3d at
719. But this should not be considered a definitive checklist as the court is free to
“fashion an approach more precisely tailored to an evaluation of the particular evidentiary
submission before it.” United States v. Conn, 297 F.3d 548, 556 (7th Cir. 2002). Finally,
the court must only evaluate the “principles and methodology, not . . . the conclusions
that they generate.” Daubert, 509 U.S. at 595.
Defendant attacks Dr. Margherita’s methodology with several principal
arguments: (1) lack of specialized or independent testing; (2) failure to review Plaintiffs’
pre-accident records; and (3) failure to test conclusions with scientific method.
1. Lack of Specialized and Independent Testing
First, as to Defendant’s arguments regarding the lack of specialized and
independent testing done by Dr. Margherita, it is not necessary to evaluate these
criticisms. Indeed, they relate to his concurrence of Dr. Shady’s diagnosis, which the
court excluded based on a failure to show sufficient qualifications.
arguments are now moot.
2. Failure to Review Plaintiffs’ Pre-Accident Records
Next, Defendant cites Dr. Margherita’s failure to review Kent Higgins’ preaccident medical condition. This alleged omission, though, goes towards the weight
given to his opinion. Indeed, if Dr. Margherita failed to take into account how Plaintiffs’
prior condition would impact their work capacities, this would undercut the strength of
his opinion. Additionally, Defendant has not set forth any evidence that either Rachel or
Sarah Taylor had any relevant pre-accident medical history. Thus, this factor does not
3. Failure to Test Conclusions
Defendant argues Dr. Margherita failed to test his conclusions using the scientific
method and thus his opinions are merely speculative. The “first and most significant
Daubert factor is whether the scientific theory has been subjected to the scientific
method.” Bradley v. Brown, 42 F.3d 434, 438 (7th Cir. 1994). This is because bottom
line conclusions do not assist the court and must be excluded. See Huey v. United Parcel
Serv., Inc., 165 F.3d 1084, 1087 (7th Cir. 1999) (“an expert must substantiate his opinion;
providing only an ultimate conclusion with no analysis is meaningless”). An “expert
must offer good reason to think that his approach produces an accurate estimate using
professional methods, and this estimate must be testable.” Zenith Electronics Corp. v.
WH-TV Broad. Corp., 395 F.3d 416, 419 (7th Cir. 2005). To that end, reasonable
methodology upon which to base an opinion may include either “hands-on testing” or
“review of experimental, statistical, or other scientific data generated by others in the
field.” Cummins v. Lyle Indus., 93 F.3d 362, 369 (7th Cir. 1996). The court may
“exclude expert testimony when it determines that the underlying facts or data cannot
support the conclusion – i.e., when the analytical gap between the two is too great to put
the conclusion before a jury.” Cunningham v. Masterwear, Inc., No. 1:04-cv-1616, 2007
WL 1164832, at *2 (S.D. Ind. Apr. 19, 2007).
Defendant argues that Dr. Margherita’s methodology regarding causation is not
scientifically reasonable and thus his opinions are mere conjecture. Here, Dr. Margherita
reached his conclusions by “[r]eviewing the medical records, obtaining [Plaintiffs’]
medical history, [and] doing a physical examination.” (Margherita Dep. 20:16-20).
Particularly, the physical examination entailed using “standardized protocols for the
determination of strength, range of motion, sensation, and functioning of the bodily
systems. Measurements were derived using protocols as described in standard texts.”
(Def.’s Exs. C, D, and E). For example, Dr. Margherita conducted a kind of “general
examination” by examining Plaintiffs’ vital signs and body systems while also focusing
on posture, range of motion, and assessing their lungs. (Margherita Dep. 20:16-21:5).
Dr. Margherita conceded, however, that he performed the same examination of the
Plaintiffs as he would for any patient, no matter the injury. (Id. at 21:13-16). Indeed, he
did not perform any specialized pulmonary testing on any of the Plaintiffs. (Id. at
100:24-101:2). Instead, Dr. Margherita relied extensively on the opinions of treating
physicians, Drs. Shady and Haacke. (Id. at 31:8-15). Based on this analysis and
physical examination, Dr. Margherita concluded that each Plaintiff suffered from a form
of reactive airway disease that is the direct result of each Plaintiff’s exposure to chlorine
gas. To that end, Dr. Margherita estimated that Rachel Taylor and Sarah Taylor
sustained “moderate exposure” to chlorine gas, but he neither defined “moderate
exposure” nor explained how this estimate was calculated.
Both parties direct the court to Cunningham for the issue, and the court agrees that
its holding is instructive. There, the district court excluded an expert’s testimony that
PCE contamination caused the plaintiffs’ illnesses because (1) no determination was
made as to the type of exposure to PCE plaintiffs faced and whether this was enough to
cause the symptoms; (2) the expert failed to show the medical literature demonstrates that
these type of symptoms are possible at all; and (3) the expert failed to show that PCE was
the specific cause of plaintiffs’ ailments. Cunningham, 2007 WL 1164832, at *8.
These same critical factors are also present here. Indeed, Dr. Margherita stated
only a conclusory finding that Plaintiffs had “moderate exposure” to chlorine gas but
neither defined that amount nor discussed to what extent such exposure caused
symptoms. See id. at *5 (finding that even if plaintiffs were exposed to PCE, if “the dose
and duration that they were exposed to is medically insignificant, then it is irrelevant to
their condition”). Further, Dr. Margherita did not analyze the medical literature to arrive
at his conclusions; rather, his conclusions were already reached before Plaintiffs’ counsel
provided the literature and thus only “further supported” his conclusions. See id. at *2
(stating general causation can generally be “demonstrated by a review of the scientific
and medical literature”). Lastly, Dr. Margherita failed to conduct any type of differential
diagnosis. A differential diagnosis involves ruling in and ruling out the possible causes
of a medical problem and identifying the “last remaining, or most probable, ‘ruled in’
cause of a medical problem.” Ervin, 492 F.3d at 903. Dr. Margherita did not conduct
such analysis, nor did he discuss or rule out any other potential causes of Plaintiffs’
symptoms. See id. at 904 (“A differential diagnosis satisfies a Daubert analysis if the
expert uses reliable methods”).
Dr. Margherita failed to articulate any reason his conclusions are accurate as to
causation; instead, the court is left with nothing but his ipse dixit opinion. His opinion
essentially boils down to exposure to chlorine gas may cause the types of symptoms seen
in Plaintiffs, ergo, chlorine exposure caused the symptoms. This does not allow the court
to assess what, if any, methodology was used in arriving at these conclusions. This is not
sufficient methodology for proving causation. See id. at 904-05 (“The mere existence of
a temporal relationship between taking a medication and the onset of symptoms does not
show a sufficient causal relationship”). Accordingly, Dr. Margherita has not set forth
reliable methodology for determining causation, and this opinion must be excluded.
b. Impact on Work Ability
Finally, the court examines whether Dr. Margherita had a reliable basis for his
opinions regarding the impact of the respiratory injuries on Plaintiffs’ work ability. As in
all his opinions, Dr. Margherita relied heavily on the prepared reports of the Plaintiffs’
treating physicians; this, however, does not destroy the reliability of his conclusions. See
Cunningham, 2007 WL 1164832, at *5 (“[r]elying on reports prepared by others is an
acceptable way to determine the nature and extent of [chemical] exposure . . .”).
Moreover, Dr. Margherita conducted his own “hands-on” physical examination of the
Plaintiffs and has prior experience in assessing the vocational limitations of patients.
Accordingly, Dr. Margherita created a logical bridge between the data and his
conclusions and thus may testify regarding this subject.
For the reasons set forth above, Defendant’s motion to exclude Dr. Margherita
(Docket # 110) is GRANTED IN PART and DENIED IN PART. Also, as noted
before, Defendant’s motion to strike Plaintiffs’ untimely response (Docket # 155) is
SO ORDERED this 3rd day of December 2013.
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court JUDGE
RICHARD L. YOUNG, CHIEF
Southern District of Indiana
United States District Court
Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.