Quirin v. Alcatel-Lucent USA Inc. et al

Filing 246

MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 3/6/2014. Mailed notice(ef, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARILYN F. QUIRIN, Special
Representative of the Estate of
RONALD J. QUIRIN, Deceased,
Plaintiff,
v.
LORILLARD TOBACCO COMPANY,
et al.,
Defendants.

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Judge Joan B. Gottschall
Case No. 13 C 2633

MEMORANDUM OPINION & ORDER
Plaintiff Marilyn F. Quirin, special representative of the estate of Ronald J. Quirin
(“Quirin”), has sued defendants Lorillard Tobacco Company (“Lorillard”) and Hollingsworth &
Vose Company (“H&V”) on a negligence theory, alleging that Mr. Quirin’s mesothelioma was
caused by his exposure to asbestos while smoking Kent cigarettes, which, during the 1950s, were
manufactured with a “Micronite” filter that contained asbestos (hereinafter “original Kents”).
Now before the court are two motions brought pursuant to Federal Rule of Evidence 702 and
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993): (1) Quirin’s “Motion to
Preclude Reliance by Defendants’ Expert Witnesses on Scientifically Unreliable Testing
Performed by Lorillard in the 1950s” and (2) Lorillard and H&V’s “Motion to Exclude the
Expert Testimony of John Pauly, Ph.D.” The motions are granted in part and denied in part.
I. LEGAL STANDARD
Under Rule 702, an expert witness, “qualified . . . by knowledge, skill, experience,
training, or education,” may testify 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.
A trial judge 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 do so, the district court must
ascertain whether the expert is qualified, whether his or her methodology is scientifically
reliable, and whether the testimony will ‘assist the trier of fact to understand the evidence or to
determine a fact in issue.’” Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893 (7th Cir. 2011)
(quoting Fed. R. Evid. 702). The court must prevent an expert from offering legal conclusions, as
“experts cannot make those.” See United States v. Diekhoff, 535 F.3d 611, 619 (7th Cir. 2008).
“The reliability of the expert’s principles and methods can be examined by looking at
factors such as (1) whether the scientific theory or technique can be (and has been) tested; (2)
whether the theory or technique has been subjected to peer review and publication; (3) whether a
particular technique has a known potential rate of error; and (4) whether the theory or technique
is generally accepted in the relevant scientific community.” Schultz v. Akzo Nobel Paints, LLC,
721 F.3d 426, 431 (7th Cir. 2013) (citing Daubert, 509 U.S. at 593-94). The Seventh Circuit has
explained that the judge’s concern “is not the ultimate correctness of the expert’s conclusions.
Instead, it is the soundness and care with which the expert arrived at her opinion: the inquiry
must ‘focus . . . solely on principles and methodology, not on the conclusions they generate.’”
Id. (quoting Daubert, 509 U.S. at 595). If the expert’s principles and methodology reflect
reliable scientific practice, “[v]igorous cross-examination, presentation of contrary evidence, and

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careful instruction on the burden of proof are the traditional and appropriate means of attacking
shaky but admissible evidence.” Daubert, 509 U.S. at 596.
II. ANALYSIS
A. Opinions Based on Testing of Original Kent Cigarettes in the 1950s
Quirin seeks to preclude Lorillard and H&V’s expert witnesses (Dr. Allen Gibbs, Dr.
Williams Hinds, and Dr. Kevin Reinert) from relying on testing performed by Lorillard and
several contractors in the 1950s in drawing conclusions regarding the release of asbestos fibers
from original Kent cigarettes. Quirin does not challenge the three experts’ qualifications or their
testimony in its entirety, only the conclusions that are based on Lorillard’s testing. The testing in
question was performed by (1) Dr. John Killian, (2) Dr. David Kendall, (3) the Laboratory of
Industrial Hygiene, (4) Dr. Ernest Fullam, and (5) the Armour Research Foundation.
Lorillard and H&V first respond generally by arguing that documents describing the
testing are admissible as business records and may be otherwise relevant to the case. Although
the court acknowledges that possibility, it has nothing to do with the permissible scope of expert
testimony or whether the conclusions the defendants’ experts drew from the documents are
sound.
Lorillard and H&V further argue that testimony based on the studies should be admitted
because the people who conducted the testing are now unavailable to testify, no freshlymanufactured or properly preserved original Kents are available to test today, no additional
documents exist from the studies other than those available to the experts, and the studies are
part of the record that an expert would be expected to review. Again, none of these arguments
go to the scientific validity of the tests themselves. Nor are they relevant to whether the
conclusions the experts drew from the studies are reliable.

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The court reviews, in turn, each set of tests and the expert reports discussing the testing.
1. Killian
Two of Lorillard and H&V’s experts, Dr. Hinds and Dr. Reinert, summarize in their
expert reports testing performed for Lorillard by Dr. John Killian. Dr. Hinds states in his report:
During the period 1951 to 1955 Killian Research Laboratories, Inc., under
contract to P. Lorillard Co., tested Kent filter cigarettes, primarily for filter
efficiency. In November 1951 they measured fiber release into the tar from 200
regular and 200 filtered Kents. They ashed the tar and analyzed the residue for
silica and found no difference between the filtered and non-filtered cigarettes and
no measureable quantity of asbestos, a silicate, in either. Lorillard repeated this
experiment in its laboratories by testing 100 Kent cigarettes and found no
evidence of fiber release. To be sure, Killian repeated the experiments with 1000
of each type of cigarette and found 75 ug of silicate in the tar from regular
cigarettes and no silicate in the tar from Kent filter cigarettes.
(Defs.’ Expert Reports Ex. 3 (Hinds Report) 3, ECF No. 84-3.) Dr. Reinert states in his report:
In November 1951, P. Lorillard used standard mechanical smoking equipment to
test a sample size of 100 Kent cigarettes and observed no measurable quantity of
asbestos in the smoke. In addition, using a gravimetric method, Dr. Killian in
November 1951 found no evidence that asbestos was released in the smoke from
two tests performed first on 200 Kent cigarettes and later on 1000 Kent cigarettes,
for a total of 1,200 Kent cigarettes.
(Def. Lorillard’s Expert Report Ex. 5 (Reinert Report) 3, ECF No. 84-5.)
The existing records of the testing performed by Dr. Killian in 1951 consist of two
handwritten notes from November 1951 written by Lorillard executive Dr. H. B. Parmele,
memorializing phone conversations with Dr. Killian. The notes are similar in content to the
experts’ statements above. They mention “silica,” not asbestos. (Pl.’s Mot. to Exclude Ex. O
(Nov. 9, 1951 Notes), ECF No. 129-16.) Dr. Reinert saw no reports or notes authored by Dr.
Killian himself, only the phone messages. (Pl.’s Mot. to Exclude Ex. L (Reinert Dep.) 14:119:25, ECF No. 129-13.)

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The court cannot determine from Dr. Parmele’s notes how the cigarettes tested by Dr.
Killian were smoked or how the presence or absence of silica was measured by Dr. Killian.
Given that Dr. Killian’s data and reports are unavailable, it was impossible for Dr. Hinds and Dr.
Reinert to verify the reliability of his research or determine whether he used accepted or
replicable techniques. Yet, in summarizing Dr. Killian’s results, the expert reports do not
mention the fact that Dr. Killian’s actual test results are unavailable, nor do they indicate that this
absence of information makes evaluating Dr. Killian’s tests in any way problematic. The reports
simply repeat the content of Dr. Parmele’s notes. The experts’ basis for accepting Dr. Parmele’s
notes as valid and reliable is unclear. Furthermore, in Lorillard and H&V’s response to the
motion to exclude this evidence, the only argument raised in support of the reliability of Dr.
Killian’s research is that he “tested 1000 cigarettes.” (Defs.’ Resp. to Mot. to Exclude 9, ECF
No. 164.)
“The goal of Daubert is to assure that experts employ the same ‘intellectual rigor’ in their
courtroom testimony as would be employed by an expert in the relevant field.” Jenkins v.
Bartlett, 487 F.3d 482, 489 (7th Cir. 2007) (quoting Kumho Tire Co. v. Carmichael, 526 U.S.
137, 152 (1999)). As the Third Circuit has stated, where “the data underlying the expert’s
opinion are so unreliable that no reasonable expert could base an opinion on them, the opinion
resting on that data must be excluded.” In re TMI Litig., 193 F.3d 613, 697 (3d Cir. 1999). The
burden of showing that an expert’s testimony is reliable lies with Lorillard and H&V, as the
proponents of the evidence. Insofar as Lorillard and H&V’s experts’ opinions are based on Dr.
Killian’s tests, it is impossible to evaluate whether the methodology Dr. Killian used was reliable
in the absence of any information about how the testing was actually conducted. The opinions

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that merely recite Dr. Killian’s conclusions as recorded by Dr. Parmele therefore do not meet the
threshold of admissibility for expert testimony required by the Federal Rules and Daubert.
2. Kendall
Dr. Hinds and Dr. Reinert also rely in their expert reports on testing performed by Dr.
Kendall in 1954. Dr. Hinds states in his expert report:
In 1954 David N. Kendall, PhD, a consulting chemist, tested the smoke from Kent
filter cigarettes and found no evidence of silica or silicates. His infrared
absorption method had a sensitivity of 0.1% by weight.
(Hinds Report 3.) Dr. Reinert states:
During February 1954, Dr. Kendall, using infrared spectroscopy quantified with
specific standards, also demonstrated that no asbestos was released into smoke
from Kent filters after smoking hundreds of cigarettes.
(Reinert Report 3.) Although Dr. Kendall apparently produced several reports to Lorillard
regarding his research analyzing the components of cigarette smoke, nothing in the record
presented to the court indicates how Dr. Kendall’s testing was performed. In their response to
the motion to exclude references to Dr. Kendall’s testing, Lorillard and H&V cite only to Dr.
Reinert’s deposition, in which he states that Dr. Kendall “was looking for the presence or
absence of silica in both the Old Gold and Kent smoke” and that “typically you’re going to be
running standards . . . to calibrate and assess the samples,” although he acknowledges that Dr.
Kendall’s reports did not state how the machine was calibrated. (Defs.’ Resp. to Mot. to Exclude
Ex. D (Reinert Dep.) 59:20-22, ECF No. 163-4.) This testimony does not help the court to
understand how Dr. Kendall’s study was designed, the extent to which asbestos fibers could have
been measured using Dr. Kendall’s techniques, the basis for the conclusion that no asbestos was
observed in the smoke, or whether the techniques employed by Dr. Kendall were reliable, so that
it may address whether the experts’ summaries of Dr. Kendall’s work satisfy Daubert. Lorillard

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and H&V, as the proponent of this evidence, have therefore not met their burden to demonstrate
by a preponderance of the evidence that expert testimony based on Dr. Kendall’s work satisfies
the Daubert standard. If Lorillard and H&V believe they can present evidence sufficient to make
this showing, they may move the court for a Daubert hearing on the admissibility of expert
testimony based on Dr. Kendall’s reports.
3. The Laboratory of Industrial Hygiene
Dr. Reinert states in his expert report:
P. Lorillard asked the Laboratory of Industrial Hygiene in 1953 to compare smoke
passed through a Kent filter to New York City air. This laboratory demonstrated
that the Kent cigarette did not release asbestos in any amount greater and
probably less than the amount of asbestos typically found in New York City air
(background).
(Reinert Report 3.) During his deposition, Dr. Reinert explained that he did not see the actual
study produced by the Laboratory of Industrial Hygiene, only “a letter from Parmele to someone
else at a higher level within Lorillard.” (Reinert Dep. 2476:26-27.) The June 15, 1953, letter
from Dr. Parmele to Lorillard President W.J. Halley states,
[W]e have had the Laboratory of Industrial Hygiene conduct thorough tests to
prove the absence of silica in the smoke from Kent Cigarettes. . . . We wish to call
to your attention the air blank results which indicate the normal amount of silica
in New York City air. Values of 0.1 to 0.2 milligrams are shown. It is gratifying
to note that the amount of silica in the smoke from Kent Cigarettes is no greater,
in fact, probably a little less than the amount of silica in the air which we
normally breathe. The above is the information which we wanted.
(Pl.’s Mot. to Exclude Ex. Q (June 15, 1953 Letter), ECF No. 129-18.)
The letter includes no information about the research methods used or how the silica in
the cigarette smoke was measured. Thus, as was the case with Dr. Killian’s tests, it would have
been impossible for Dr. Reinert to have verified the reliability of the research in question. His

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conclusion as to what the “laboratory demonstrated” therefore does not meet the Daubert
standard for expert testimony and is inadmissible.
4. Fullam
Dr. Fullam was engaged to conduct two rounds of testing for Lorillard using electron
microscopy. The first tests were performed on “smoke solutions” sent to him by Lorillard, and
the second round of tests were performed on “experimental” Kent cigarettes furnished by
Lorillard and smoked using a homemade smoking apparatus. Dr. Hinds states in his report:
The Ernest F. Fullam, Inc. laboratory conducted some tests on asbestos fiber
release from experimental cigarettes and Kent filter cigarettes in 1954. Their
initial tests were performed on samples of Kent cigarette smoke collected by
Lorillard using a smoking machine. They examined the samples in an electron
microscope at 15,000X magnification, but found no asbestos fibers. Next they
repeated the tests, but with the smoke samples taken in his basement laboratory
using a manually operated smoking device. It was necessary to manipulate the
cigarettes in order to attach them to the smoking device. The smoke particulate
was collected by bubbling the smoke stream through acetone. The collected
material was concentrated and a drop put on an electron microscope grid and
allowed to evaporate so that the residue could by examined by electron
microscopy. With this procedure they found a few fibers. A comparison of
Fullam’s results with EPA guidelines (Fed. Reg., 1987) for
contamination/background levels suggests the number of fibers measured by
Fullam most likely were the result of filter contamination/background levels.
Fullam found one asbestos fiber for approximately every 20 electron microscope
grid openings examined, whereas EPA considers one asbestos structure for every
10 grid openings to be comparable to contamination/background levels. Fullam’s
results are below filter contamination/background levels, which imply that we
cannot say the number of fiber[s] released is different from zero. Rough
calculations using these results suggest that smoking one pack/day of Kent filter
cigarettes would result in far fewer fibers, less than 1/800, being inhaled than
permitted by current OSHA standards.
(Hinds Report 4.) Dr. Reinert similarly states:
In early 1954, Mr. Fullam initially did not find asbestos in Kent cigarette smoke
samples he analyzed using an electron microscope. Subsequently, Mr. Fullam
smoked experimental cigarettes received from P. Lorillard, using a non-standard
smoking apparatus in his basement home laboratory. Based on those experimental
samples, he reported finding traces of fibers, which he did not definitively
identify.
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...
It is my opinion that Mr. Fullam’s test results on experimental cigarettes smoked
using his non-standard smoking apparatus are questionable as he did not use a
mechanical or automated smoking machine, he did not run method or laboratory
blanks and he did not confirm the identification of the fibers he observed, as
requested by P. Lorillard. In addition, his results are inconsistent with the
treatments used on some experimental cigarette filters provided by P. Lorillard.
Consequently, some of Mr. Fullam’s findings on the experimental cigarette filters
are contrary to the expected results. Nevertheless, taken in total, Mr. Fullam’s
results on these experimental cigarettes are considered at or below background.
(Reinert Report 3-4.)
No reports are available detailing Dr. Fullam’s studies. The method of generating the
smoke samples is not documented. Dr. Reinert testified at deposition that he assumed that the
smoke samples provided to Dr. Fullam by Lorillard were produced with a standard smoking
machine. (Reinert Dep. 83:22-84:9.) The only evidence presented to the court regarding Dr.
Fullam’s work consists of two letters written by Dr. Parmele. The first is a February 12, 1954,
letter from Dr. Parmele authorizing Dr. Fullam to “undertake the project” and agreeing to supply
Dr. Fullam with smoke samples suspended in acetone. (Pl.’s Mot. to Exclude Ex. R (Feb. 12,
1954 Letter), ECF No. 129-19.) The second, a December 1, 1954, letter from Dr. Parmele to Dr.
Harold Knudson, states that Dr. Fullam “smoke[d] several cigarettes . . . and passe[d] the smoke
into a small acetone trap. He then centrifuge[d] this acetone in such a manner as to throw out
and separate any suspended solid particles.” (Mot. to Exclude Ex. S (Dec. 1, 1954 Letter).) Dr.
Fullam then prepared specimen screens which he scanned with the electron microscope,
“counting the number of meshes in his screening that he ha[d] to look at before finding a single
particle of asbestos.” (Id.) The letter included a table of the samples covered in Fullam’s report
and noted that the data “makes very little sense.” (Id.)
The other documents apparently in existence relating to Dr. Fullam’s work were provided
to the parties’ experts, but they were not provided to the court. Furthermore, Lorillard and
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H&V’s response to the motion to exclude contains no explanation as to how Dr. Fullam’s work
reliably supports Dr. Hinds and Dr. Reinert’s conclusions that the tests showed the presence of
asbestos fibers in the smoke at or below background levels.

Lorillard and H&V, as the

proponent of this evidence, have not met their burden to demonstrate by a preponderance of the
evidence that expert testimony based on Dr. Fullam’s work satisfies the Daubert standard. If
Lorillard and H&V believe they can present evidence sufficient to make this showing, they may
move the court for a Daubert hearing on the admissibility of expert testimony based on the
testing performed by Dr. Fullam.
5. Armour Research Foundation
Dr. Gibbs states in his report:
I have reviewed the 1950s Armour Research Foundation reports #11, #12 and the
1954 summary report on fibre release from Kent cigarettes. These tests indicate a
minimal release of fibers from the filter when smoked, which was quantified as 3
fibers per cigarette.
(Defs.’ Expert Reports Ex. 1 (Gibbs Report) 3, ECF No. 93-1.) Dr. Hinds states:
In 1954 Armour Research Foundation (ARF) tested the Kent filter and found
three fibers were released from one cigarette during the lighting puff. In a
separate test when 1 cm of the cigarette was consumed no fibers were released.
The results of the first test correspond to 60 fibers being released by smoking one
pack of Kent cigarettes. This is far below the daily asbestos exposure one could
receive based on current OSHA standards and well below the exposure one gets
by just breathing urban air, where an asbestos fiber concentration for outdoor air
of 0.0004 fibers/mL (>5um in length) (Mossman at al., 1990) is assumed. ARF
also noted that some of the supporting (cellulose) fibers were released by
manipulation.
(Hinds Report 4.) Dr. Reinert states in his report:
[I]n 1954, the Armour Research Foundation smoked fresh Kent cigarettes using
an automated smoking machine. When a cigarette was smoked enough to light it,
three fibers were released; however, in another experiment, no fibers were
collected when a cigarette was smoked one centimeter. Consistent with the
scientific principles at work in the filter during smoking, the Armour Research
Foundation also reported and documented with photographs that the moisture and
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other constituents in tobacco smoke caused the fibers to bind more firmly
together, thereby minimizing and even preventing release. As noted above, these
results were obtained using an automated smoking machine. Armour also
investigated the number of particles produced during smoking and completed
many other particulate-based projects (including number, shape, size, and
distribution of particulates) using Kent and other cigarettes.
(Reinert Report 3.)
In contrast to much of the other testing discussed above, reports exist and are in evidence
detailing the testing conducted by the Armour Research Foundation.

Thus, the methods

employed, the results obtained, and the potential limitations of the testing are sufficiently clear
that they can be evaluated by the parties’ experts. Given the absence of more reliable testing on
which the experts could have relied, the court concludes that it was appropriate for Lorillard and
H&V’s experts to discuss the testing performed by the Armour Research Foundation in their
expert reports. Moreover, the testing results are accurately described in the reports.
Quirin’s objection to the testing of the Armour Research Foundation is that “the sum total
of the ARF testing relied upon by all of Lorillard’s experts consists of essentially two puffs from
one cigarette.” (Mot. to Exclude 14.) This is a challenge to the weight of the evidence and to the
experts’ conclusions that may be raised during cross-examination and by Quirin’s own expert.
See Manpower, Inc. v. Ins. Co. of Penn., 732 F.3d 796, 810 (7th Cir. 2013) (“Assuming a
rational connection between the data and the opinion—as there was here—an expert’s reliance
on faulty information is a matter to be explored on cross-examination; it does not go to
admissibility.”). Quirin’s motion is therefore denied as to expert testimony based upon the
testing of the Armour Research Foundation.
B. Dr. Pauly’s Testimony
Lorillard and H&V move to exclude the testimony of Quirin’s expert, Dr. Pauly. Dr.
Pauly was retained to evaluate various tests performed on original Kent cigarettes, designed to
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determine whether the cigarettes released asbestos fibers when smoked. Dr. Pauly is a professor
of immunology and a cancer research scientist.

He has been involved with laboratory

experimentation on cigarette filters since the early 1990s. Dr. Pauly has published papers on
cigarette filter design and on the release of (non-asbestos) fibers from cigarette filters. Dr. Pauly
was asked by Quirin’s attorneys to evaluate testing conducted by Lorillard and various
contractors in the 1950s. He offered an opinion as to whether the testing “adhered to basic
principles of the scientific method.” (Pl.’s Expert Reports Ex. 2 (Pauly Report) 2, ECF No. 822.) Dr. Pauly also offered opinions on more recent testing of original Kents by Dr. William
Longo and Dr. James Millette.
1. Opinions on Testing of Original Kent Cigarettes Conducted in the 1950s
In his expert report, Dr. Pauly addresses the five sets of tests discussed above that were
conducted by Lorillard and its contractors.1 With respect to each, he describes the existing
documents detailing the testing and offers his opinion as to the importance of missing
information on how the testing was conducted and analytical flaws in the study designs. He
concludes with respect to several of the studies that insufficient information exists to support
their scientific validity. He also finds significant flaws in the design of the studies.
Lorillard and H&V first argue that Dr. Pauly is unqualified to offer opinions regarding
testing performed on original Kent cigarettes at the time of their manufacture in the 1950s. They

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In addition to challenging Dr. Pauly’s evaluation of the five sets of tests previously
discussed, Lorillard and H&V argue that Dr. Pauly may not rely on research on original Kents
conducted by Althea Revere and Wanda Farr, because the evidence of their research results is
unreliable and is inadmissible hearsay. Dr. Pauly’s expert report does not discuss Revere and
Farr’s findings or include opinions based on their work. There is, however, some indication in
his deposition testimony that he might refer to their work at trial. There is apparently no
documentary record of the results of this research. Even so, the record presented to the court
does not permit a ruling at this time on whether this evidence must be excluded under Daubert.
Lorillard and H&V may raise objections to the evidence at trial or through a motion in limine.
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contend that Dr. Pauly has no specialized knowledge about testing asbestos products for fiber
release or the design and testing of original Kent cigarettes. Although he has tested other brands
of cigarettes for the release of non-asbestos fibers, he has never tested original Kents, the only
cigarettes made with an asbestos filter.
The court disagrees with Lorillard and H&V’s assessment of Dr. Pauly’s qualifications.
Dr. Pauly’s expertise in testing cigarette filters for fiber release is closely related to the subject
matter at issue here and renders him qualified to offer opinions on the design of studies that test
for fiber release from cigarette filters. Although Dr. Pauly’s own research concerns fibers other
than asbestos that may be released from cigarette filters, this does not make his knowledge
irrelevant. He is capable of evaluating the methods employed and the data reported in the studies
he was asked to review. See Doe v. Cutter Biological, Inc., 971 F.2d 375, 385 (9th Cir. 1992)
(“Ordinarily, courts impose no requirement that an expert be a specialist in a given field,
although there may be a requirement that he or she be of a certain profession . . . .”).
Lorillard and H&V further argue that Dr. Pauly’s opinions about Lorillard’s testing lack a
proper foundation because he “did not participate in any of this testing, and he did not perform
his own independent investigation or analysis.” (Defs.’ Mot. to Exclude 9, ECF No. 126.) But
expert testimony need not be based on first-hand knowledge or research actually conducted by
the expert himself. See Daubert, 509 U.S. at 592; Mihailovich v. Laatsch, 359 F.3d 892, 919
(7th Cir. 2004) (“[T]he Daubert framework is a flexible one that must be adapted to the . . . type
of testimony being proffered.”); Walker v. Soo Line R.R., 208 F.3d 581, 588 (7th Cir. 2000)
(“[C]ourts frequently have pointed to an expert’s reliance on the reports of others as an
indication that their testimony is reliable.”).

Indeed, were an expert required to directly

participate in testing in order to offer an opinion about the testing’s merits, much of the

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testimony of Lorillard and H&V’s experts would also be barred, as they, like Dr. Pauly, have “no
knowledge about [the scientists’] work other than what is contained in the documents [they]
reviewed.” (Defs.’ Mot. to Exclude 9.) Furthermore, insofar as Lorillard and H&V argue that
Dr. Pauly lacks a foundation for testimony regarding the studies conducted in the 1950s because
“he lacks the information necessary to pass scientific judgment” on the testing, that his precisely
the point of his testimony—that insufficient documentation exists to demonstrate the scientific
validity of the testing.

The court concludes that Dr. Pauly’s opinions concerning testing

performed on original Kents in the 1950s are based on an adequate foundation and are relevant to
the issues in the case, and that they will be helpful to the jury in evaluating the evidence.
Lorillard and H&V further argue that Dr. Pauly should not be allowed to offer opinions
regarding the contents of corporate documents, particularly those authored by Dr. Parmele, or
regarding the perceived motives or biases of Dr. Parmele or Lorillard. The court finds no such
opinions in Dr. Pauly’s expert report. In the notes attached as an exhibit to the report, however,
Dr. Pauly includes statements suggesting that he suspected bias on Dr. Parmele’s part. The court
agrees with the defendants that opinions about the motivations of Lorillard’s corporate
executives are outside the scope of Dr. Pauly’s expertise and are not proper expert testimony.
Dr. Pauly’s testimony should be confined to conclusions that may or may not be drawn from the
documents relating to the testing.
2. Opinions about Testing of Original Kents Conducted by Dr. Millette and Dr. Longo
Dr. Pauly was also asked to analyze more recent testing conducted by Dr. Millette and
Dr. Longo on original Kent cigarettes manufactured in the 1950s. Lorillard and H&V argue that
Dr. Pauly may not testify for the improper purpose of bolstering Plaintiff’s expert, Dr. James

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Millette, or to introduce into evidence the reports of Dr. Longo. The court has reviewed Dr.
Pauly’s report with respect to his opinions on Dr. Longo and Dr. Millette’s work.
With respect to Dr. Longo, Dr. Pauly’s report summarizes the testing performed by Dr.
Longo in 1991. It then states, “This investigation was carefully crafted, executed appropriately,
and in-depth analyses are used to support the conclusion stated.” (Pauly Report 21.) The report
next summarizes Longo’s 1995 article in four sentences, and states, “This report documents a
carefully crafted research scheme.” (Id.) Next, the report summarizes Dr. Longo’s 2012 study
and states, “The investigators have crafted an investigation that addresses and refutes any
criticisms that have arisen previously as to inadequate conditioning of the test cigarettes or
inappropriate mechanical smoking devices.” (Id. at 23.)
With respect to Dr. Millette, Dr. Pauly summarizes the testing performed by Dr. Millette
on original Kent cigarettes and the results of the testing. He then states that “the investigation is
detailed with respect to purpose, research scheme, materials and methods, instrumentation, and
test product origin and custody. The acid/base digestion method is innovative and scientifically
sound.

Summarily, as an aggregate, this investigation provides ample data to support the

author’s conclusion . . . .” (Id. at 24.)
An expert may rely on information provided by non-testifying experts, so long as he does
not merely serve as a spokesman for the absent expert, vouching for the truth of his statements.
In re James Wilson Assocs., 965 F.2d 160, 172-73 (7th Cir. 1992). An expert must explain the
methodology and principles supporting his opinion, and that opinion must amount to “more than
a ‘bottom line.’” Minix v. Canarecci, 597 F.3d 824, 835 (7th Cir. 2010). Although Dr. Pauly is
qualified to offer an opinion as to the merits of Dr. Longo and Dr. Millette’s research, his expert
report amounts to little more than a summary of Dr. Longo and Dr. Millete’s conclusions,

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followed by a “bottom-line” statement that those conclusions are valid. The report includes no
basis for the court to evaluate how Dr. Pauly arrived at the conclusion that the studies were welldesigned and thorough. Dr. Pauly’s bare assertions about the merits of Dr. Millette’s and Dr.
Longo’s research adds little, if any, value to the trier of fact.

His endorsement of their

conclusions is therefore excluded.
C. Dr. Pauly’s Anticipated Rebuttal Testimony
Quirin anticipates that Dr. Pauly will offer testimony to rebut the testimony of two of
Lorillard and H&V’s expert witnesses, Dr. Reinert and Dr. Melvin W. First. As to Dr. Reinert,
Quirin represents that Dr. Pauly will take issue with Dr. Reinert’s evaluation of testing
performed on original Kent cigarettes in the 1950s. The court has already concluded that Dr.
Pauly is permitted to offer testimony regarding the possible shortcomings of the testing and the
evidence documenting it.2 Lorillard and H&V are correct, however, that Dr. Pauly is not
qualified to testify as to whether Dr. Reinert is a credible witness. An expert may not opine on
another witness’s credibility. Goodwin v. MTD Prods. Inc., 232 F.3d 600, 609 (7th Cir. 2000).
As to Dr. First, Quirin states that Dr. Pauly will “rebut Dr. First’s opinions regarding the
forces of physics that purportedly serve to prevent fiber release from cigarette fibers.” (Pl.’s
Resp. to Mot. to Exclude 18.) Lorillard and H&V argue that Dr. Pauly is not qualified to critique
Dr. First’s work because he “has just reviewed documents” and was unfamiliar with Dr. First’s
work prior to this litigation. (Defs.’ Mot. to Exclude 20.) Nor, they argue, has Dr. Pauly worked
directly with filters containing asbestos. The court concludes that, although Dr. Pauly has not

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Lorillard and H&V further argue that Dr. Pauly should not criticize Dr. Reinert’s
statements about a patent on the Micronite filter. Quirin does not respond to this argument, and
it is not clear to the court what anticipated testimony is being challenged. Even so, nothing in the
record suggests that Dr. Pauly has any expertise concerning patents. Thus, the court concludes
that Dr. Pauly is not qualified to offer testimony about the patent process.
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conducted studies on filters containing asbestos, his experience studying cigarette filters for the
release of other types of fibers qualifies him to offer an opinion on studies of this nature.
Therefore, Dr. Pauly will be permitted to offer his opinion on Dr. First’s conclusions, although,
of course, he may not attack Dr. First’s credibility.
III. CONCLUSION
Quirin’s “Motion to Preclude Reliance by Defendants’ Expert Witnesses on Scientifically
Unreliable Testing Performed by Lorillard in the 1950s” is granted in part and denied in part.
Lorillard and H&V’s experts may not offer opinions relying on the testing performed by Dr.
Killian or the Laboratory of Industrial Hygiene. If Lorillard and H&V wish to offer opinions
relying on the work of Dr. Kendall and Dr. Fullam, they may move the court for a Daubert
hearing on that evidence. The motion is denied with respect to testing conducted by the Armour
Research Foundation. Lorillard and H&V’s “Motion to Exclude the Expert Testimony of John
Pauly, Ph.D.” is granted in part and denied in part. Dr. Pauly’s testimony regarding the testing
performed by Lorillard and various contractors in the 1950s is admissible, as is his rebuttal
testimony. His testimony regarding testing performed by Dr. Millette and Dr. Longo is not.

ENTER:

/s/
JOAN B. GOTTSCHALL
United States District Judge
DATED: March 6, 2014

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