Walters et al v. Flint et al

Filing 447

OPINION AND ORDER denying 343 Motion to Exclude the Testimony and Report of Dr. Aaron Specht. Signed by District Judge Judith E. Levy. (WBar)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re Flint Water Cases

Judith E. Levy
United States District Judge

__________________________________/
This Order Relates To:
Bellwether I Cases
Case No. 17-10164
__________________________________/
OPINION AND ORDER DENYING DEFENDANTS VEOLIA
NORTH AMERICA, LLC, VEOLIA NORTH AMERICA, INC., AND
VEOLIA WATER NORTH AMERICA OPERATING SERVICES,
LLC’S MOTION TO EXCLUDE THE TESTIMONY AND REPORT
OF DR. AARON SPECHT [343]
This opinion is one in a series addressing the admissibility of the
testimony and reports of eight experts retained by Plaintiffs in
anticipation of the first bellwether trial, currently set to begin on
February 15, 2022. Defendants argue that none of these experts can meet
the standards set by Fed. R. Evid. 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Currently before the Court is the motion by Veolia North America,
LLC, Veolia North America, Inc., and Veolia Water North America

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Operating Services, LLC (collectively “VNA”) to exclude the testimony
and report of Dr. Aaron Specht. (ECF No. 343.) The LAN and LAD
Defendants join VNA’s motion. (ECF No. 344.) For the reasons set forth
below, VNA’s motion to exclude is DENIED.
I.

Background

Dr. Aaron Specht is a research associate at the Harvard School of
Public Health. (ECF No. 368-3, PageID.23411.) Dr. Specht has a Ph.D. in
medical physics and is a leading expert on the use of portable x-ray
fluorescence technology (“pXRF”) to assess metal exposures. Dr. Specht
has published widely on the use of pXRF to measure bone-lead content
in adults, children, and animals. His qualifications as an expert are not
in dispute.
Plaintiffs retained Dr. Specht to evaluate their possible exposure to
lead by conducting bone lead tests using pXRF technology. Dr. Specht
took pXRF bone lead measurements of all four bellwether Plaintiffs and
concluded that all of them were subjected to “substantial” lead exposure.
(ECF No. 330-48, PageID.15638, 15640–15641, 15643.) In a clinical
setting, lead poisoning is generally evaluated through blood tests, but Dr.
Specht opined that bone lead measurements are a more reliable indicator
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of exposure. (Id. at PageID.15627–15629.) That is because in children,
lead quickly moves from the blood to the bones. Id. Thus, while evidence
of exposure might disappear from a child’s blood in less than two weeks,
it will remain in the child’s bones for much longer. Id.
Ordinarily bone lead measurements are taken by a large,
stationary “KXRF” device. It takes approximately 30 minutes to get an
accurate measurement using KXRF technology. Dr. Specht pioneered the
use of the alternative pXRF device. Portable-XRF and KXRF devices
measure bone lead in substantially the same way. (ECF No. 330-48,
PageID.15629–15630.) Both are applied to the subjects’ tibia bone, and
both generate raw spectral data which is then processed by a computer
to generate a relevant measurement (in this case, lead content) and an
associated uncertainty value (the margin of error). Portable-XRF devices
are small, easily portable, and require only 3 minutes to complete a
measurement.
Portable-XRF bone lead measurements have been shown to be as
reliable as KXRF measurements in most circumstances. See, e.g., Aaron
Specht et. al., Portable XRF Technology to Quantify Pb in Bone In Vivo,
2014 J. Biomark, 398032 (2014) (“Specht (2014)”); Xixin Zhang et al.,
3

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Evaluation of a portable XRF device for in vivo quantification of lead in
bone among a US population, 753 Sci. of the Total Environ. 142351 (2021)
(“Zhang (2021)”). The reliability of pXRF decreases when the soft tissue
thickness of the subject exceeds 5-6 mm. E.g., Specht (2014) at *7; Zhang
(2021) at *4.
Dr. Specht has twice published on the use of pXRF to measure bone
lead in children. See Aaron Specht et al., Childhood lead biokinetics and
associations with age among a group of lead poisoned children in China,
29 J. Expo. Sci. Environ. Epidemiol. 416 (2019) (“Specht (2019a)”); Aaron
Specht et. al., XRF-measured bone-lead (Pb) as a biomarker for Pb
exposure and toxicity among children diagnosed with Pb poisoning, 21
Biomarkers 4, 347–52 (2016) (“Specht (2016)”). At the time of those
studies, pXRF measurements were found to be less reliable in children
than in adults because (1) children generally have more soft tissue in the
measurement area and (2) Dr. Specht had not yet found a reliable
calibration for the measurement of subjects with greater than average
skin tissue thickness. See Specht (2019) at *8 (concluding that “further
investigation” was necessary regarding use of pXRF to measure bone lead
in children). However, the higher average uncertainty of the
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measurements on children in these studies was “similar to the
uncertainty associated with conventional KXRF systems in pediatric
populations.” Id.
Dr. Specht opines that his pXRF measurements of the bellwether
Plaintiffs are more reliable than the pXRF measurements of pediatric
populations in his previously published work. First, later studies on
pXRF bone lead measurements in fish and birds resolved the calibration
problems that affected the results noted in both of his pediatric studies.
See Aaron Specht et. al., Feasibility of a portable X-ray Fluorescence
device for bone lead measurements of condor bones, 615 Sci. of the Total
Environ. 398 (2018) (“Specht (2018)”); Aaron Specht et al., Lead exposure
biomarkers in the Common Loon, 647 Sci of the Total Environ. 639 (2019)
(“Specht (2019b)”). Second, the pXRF measurements, when properly
analyzed, determine not only the lead content of the subjects’ bone, but
also the uncertainty associated with that measurement. The uncertainty
values for pediatric subjects in Dr. Specht’s previous study were high (on
average, 10g/g) (Specht (2019a) at *8), but the uncertainty values for
the bellwether Plaintiffs were uniformly low (between 0.49 and 3g/g,
see ECF No. 330-48, PageID.15638–15643.) Third, a longer measurement
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time was used in the bellwether measurements than in the pediatric
studies (3 minutes rather than 2), also resulting in higher reliability.
On May 11, 2021, VNA filed a motion seeking to exclude Dr.
Specht’s opinions. (ECF No. 343.) The Court heard oral argument on the
motion on November 2, 2021. (ECF No. 410.)
II.

Legal Standard

The admissibility of expert testimony is governed by Federal Rule
of Evidence 702, which sets forth three requirements: (1) the witness
must be qualified, (2) the testimony must be relevant, and (3) the
testimony must be reliable. Fed. R. Evid. 702; In re Scrap Metal Antitrust
Litig., 527 F.3d 517, 528–29 (6th Cir. 2008). As the Supreme Court
explained in Daubert, Rule 702 imposes a “gatekeeping” obligation on the
courts to ensure that scientific testimony “is not only relevant, but
reliable.” Daubert, 509 U.S. at 589; See also Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147 (1999).
Daubert provides a non-exclusive list of factors courts may consider
when evaluating reliability: (1) whether the theory or technique at the
basis of the opinion is testable or has been tested, (2) whether it has been
subjected to peer review or been published, (3) what the known error
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rates are, and (4) whether the theory or technique is generally accepted.
Daubert, 509 U.S. at 593; see also In re Scrap Metal, 527 F.3d at 529
(listing same factors). Not every factor needs to be present in every
instance, and courts may adapt them as appropriate for the facts of an
individual case. Kumho 526 U.S. at 150.
“Rejection of expert testimony is the exception, rather than the
rule.” United States v. LaVictor, 848 F.3d 428, 442 (6th Cir. 2017)
(quoting In re Scrap Metal, 527 F.3d at 529–30)). Nevertheless, the
burden is on Plaintiffs to show by a “preponderance of proof” that the
proffered expert meets the standards of Rule 702 and Daubert. Pride v.
BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000) (quoting Daubert, 509 U.S.
at 592).
III. Analysis
The central question in VNA’s motion is whether Dr. Specht’s use
of pXRF to measure bone lead in the bellwether Plaintiffs is sufficiently
reliable to pass muster under Daubert. VNA argues that it is not,
primarily because (1) Dr. Specht’s own research shows pXRF
measurements of bone lead to be less reliable in pediatric than in adult
(ECF No. 330-7, PageID.14445–14455), and (2) the lack of bone lead
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measurements in healthy control populations makes it impossible to
assign any significance to the measurements Dr. Specht obtained (Id. at
PageID.14461–14474). VNA ultimately maintains that Dr. Specht’s use
of pXRF does not satisfy even a single Daubert factor.
VNA further argues that Dr. Specht’s testimony should be excluded
under Federal Rules of Evidence 401(a), 402, and 403, because it is
irrelevant and would be more prejudicial than probative. (ECF No. 3307, PageID.14475–14479.) Finally, VNA asserts that Dr. Specht’s opinion
regarding the higher reliability of bone lead measurements when
compared to blood lead measurements is unreliable and based on “cherry
picked” studies. (ECF No. 330-7, PageID.14480–14481.)
Defendants’ concerns about Dr. Specht’s methodology and
conclusions are not without merit. But, for the reasons stated below, the
weaknesses Defendants identify are not sufficiently serious to warrant
exclusion. They are more appropriately weighed by a jury.
A. Reliability of Portable-XRF Technology
VNA’s central contention is that the pXRF technology utilized by
Dr. Specht is too new and unreliable for use at trial. According to VNA,
all Daubert factors weigh against admission.
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1. Testability
As to the first Daubert factor, VNA asserts that Dr. Specht’s
methods are unreliable because they cannot be validated by testing. (e.g.,
ECF No. 343, PageID.21611–21613.) This claim is inconsistent with
VNA’s own repeated assertions that testing has already invalidated his
techniques. (Id., PageID.12604 (asserting that Dr. Specht’s own research
“has demonstrated” that pXRF is not reliable in children)).
VNA’s real complaint is that they cannot replicate Dr. Specht’s tests
because they cannot acquire a pXRF machine and do not know precisely
how Dr. Specht configured his device and software. But this
misunderstands the applicable standard: Daubert does not require that
any individual test-result is replicable—let alone that defendants in this
case should be able to replicate it. The relevant question is whether a
witness’ technique or technology could be falsified or refuted through the
scientific method. United States v. Gissantaner, 990 F.3d 457, 464 (6th
Cir. 2021) (citing United States v. Bonds, 12 F.3d 540, 559 (6th Cir.
1993)). “An untestable scientific theory is all theory and no science.” See
Gissantaner, 990 F.3d at 463. Clearly, the use of pXRF devices to
measure bone lead content can be and has been tested, for instance, when
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researchers compared pXRF to KXRF results. E.g., Specht (2014), Specht
(2019a), Specht (2019b).
Accordingly, the testability factor weighs strongly in favor of
admission.
2. Peer-Review and Publication
VNA next argues that Dr. Specht’s pXRF measurements fail the
peer-review and publication factors. Plaintiffs point out that multiple
scientific papers validate the use of pXRF devices to measure bone lead,
including in living human subjects. (ECF No. 368, PageID.23347–23353.)
VNA in turn argues that those same studies acknowledge pXRF to be less
reliable when used on children. Indeed, in 2016 Dr. Specht wrote that
“future measurements of children using this technology may be feasible,
but further investigation on the effect of bone composition and an
improved calibration method would be necessary to obtain more accurate
results.” (ECF No. 343-10, PageID.21700).
Citing Dr. Specht’s deposition testimony, Plaintiffs argue that
improvements in calibration and the use of a 3-minute, rather than a 2minute measurement time mitigates these reliability concerns in this
case.

(ECF

No.

368,

PageID.23352–23353.)
10

Published

research

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establishes that a longer measurement time significantly improves
accuracy. See Zhang (2021). Moreover, Dr. Specht’s more recent research
on bird and fish bones establishes that the altered calibration settings
also improve accuracy. Specht (2018); Specht (2019b).
The publications confirming that Dr. Specht’s improvements are
effective are not conclusive on their own, given that they do not concern
pediatric measurements. Significantly, however, the measurements
taken of the bellwether Plaintiffs revealed low uncertainty values. In this
case, as in all of Dr. Specht’s previous studies, data from the pXRF device
itself was used to derive an uncertainty value. For instance, the average
uncertainty in Dr. Specht’s previous pediatric study was approximately
10g/g (See Specht (2019a) at 420–21). Uncertainty values for the
bellwether Plaintiffs’ bone lead measurements were much lower
(between 0.49 and 3g/g). These values are comparable to, if not better
than, the standard uncertainty associated with use of a KXRF in
pediatric populations. See, e.g., Specht (2016) (concluding that, when
used in children, KXRF uncertainty was approximately 2.66g/g.)
Nothing in the literature suggests that Dr. Specht’s calculation of the
uncertainty value is unreliable.
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The parties’ disagreement about the uncertainty of the measures
taken in this case points to a further weakness in VNA’s position. The
core of the Daubert inquiry is to determine whether a particular theory,
technique, or technology is sufficiently scientific to be reliable—not
whether a specific set of measurements is accurate. Put another way: the
Daubert analysis does not concern an expert’s conclusions, only the
underlying “methodology and principles.” United States v. Bonds, 12 F.3d
540, 556 (6th Cir. 1993). As the Sixth Circuit has emphasized, “a
determination that proffered expert testimony is reliable does not
indicate, in any way, the correctness or truthfulness of such an opinion.”
In re Scrap Metal, 527 F.3d at 529. Even if the evidence itself is “shaky,”
that does not render it inadmissible: “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.” Id. at 532 (citing Stecyk v. Bell Helicopter Textron,
Inc., 295 F.3d 408, 415n3 (3d Cir. 2002)).
VNA points to Dr. Specht’s previous acknowledgements that pXRF
is less reliable in pediatric use. But nothing in those studies shows that
the use of pXRF—on children or on anyone else—lacks a scientific basis.
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To the contrary, the studies set forth above each validate the use of pXRF
generally. There is no suggestion that it is unscientific to use pXRF on
children or that the results are so unreliable as to be meaningless.
Rather, data from the pXRF device itself can be used to determine the
level of uncertainty associated with each measurement, and such
determinations can be made using uncontroversial methods that have
been subjected to peer review. E.g., Zhang (2021), Specht (2019a; 2019b).
This data was collected for each Plaintiff, and the uncertainty was low.
(ECF No. 330-48, PageID.15638–15644.)
Ultimately, VNA’s arguments do not show that Dr. Specht’s
methods are unscientific. Defendants may use Dr. Specht’s previous
publications to attack his credibility at trial, using “vigorous crossexamination.” In re Scrap Metal, 527 F.3d at 529. But the Court will not
exclude Dr. Specht’s testimony on the basis of alleged inaccuracies or
weaknesses in his conclusions. Cf. United States v. Mustafa D. Reynolds,
No. 1:20-cr-24, 2021 WL 3750156 at*2 (W.D. Mich. Aug. 25, 2021)
(adequacy of tests conducted “goes to the accuracy of the testing, which
is fodder for cross-examination rather than a reason to exclude the

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evidence”). The publication and peer-review factors therefore weigh in
favor of admission of Dr. Specht’s testimony and report.
3. Error Rates
Defendants next claim that pXRF measurements in children are
inadmissible because they are too prone to error to be reliable. This is
essentially a repetition of the arguments just discussed. Error rates were
provided for each measurement taken in this case and they were low.
Published, peer-reviewed research treats the error rates derived from
pXRF spectrometry data as reliable. E.g., Zhang (2021); Specht (2019a).
VNA does nothing to attack this research and instead re-emphasizes the
fact that these studies also found higher error-rates in children than in
adults. But that argument does not show—or even suggest—that the low
error rates in this case were determined unscientifically. VNA cites to the
measures of uncertainty provided in Dr. Specht’s earlier research to
argue that his methods are unreliable—but where those very same
measures show the opposite, VNA claims they must be rejected. That
position is inconsistent and unpersuasive.
In the absence of any argument against the methods used by Dr.
Specht to establish uncertainty values—methods which have themselves
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been evaluated through the peer-review and publication system—the
Court has no reason to doubt the reliability of those determinations.
Finally, even if the error rate were determined in an inadequate way, this
alone would not justify exclusion of the evidence. Bonds, 12 F.3d at 560
(finding that the rate of error weighed against admission but that the
evidence was properly admitted).
Accordingly, the error-rate factor does not weigh against admission.
4. Generally
Accepted
Standards
and
Acceptance in the Scientific Community

General

Defendants also maintain that Dr. Specht’s methodology has not
been generally accepted and is not subject to general standards, because
Dr. Specht is the only researcher pioneering the use of pXRF technology.
(ECF No. 343, PageID.21616.) VNA Defendants overstate their argument
on this point.
As an initial matter, while Dr. Specht is the pre-eminent figure in
the development of pXRF in in vivo studies, he is hardly the only
researcher in this field. Indeed, in each of the studies to which both
parties refer, Dr. Specht has several collaborating co-authors. E.g.,
(Specht (2014), Specht (2019a)). And the large-scale Zhang study of
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subjects in Indiana and Chicago was completed largely without Dr.
Specht’s involvement, by a separate group of researchers. Zhang (2021).
In addition, the pXRF technology at issue in this case is not as
novel as VNA suggests. Portable XRF devices have a long history of use
in non-medical contexts.1 Their use in human subjects is informed by the
protocols for KXRF devices, which have been used on human subjects for
decades. (ECF No. 330-48, PageID.15639–15631.) Dr. Specht’s own
methods have been subjected to almost a decade of peer review, and they
have not come under attack as unscientific or otherwise lacking. Nothing
suggests that Dr. Specht relied on the kind of “junk science” that Daubert
forbids. Best v. Lowe’s Home Centers, Inc., 563 F.3d 171, 177 (6th Cir.
2009).
VNA cites the testimony of Dr. Howard Hu (an expert Defendants
deposed but did not retain) who testified that bone lead measurements
in children have “more measurement error” and that he did not really
“see [their] utility.” (ECF No. 343, PageID.21617.) These comments do

See, e.g., Ioannis Liritzis & Nikolaos Zacharias, Portable XRF of Archeological
Artifacts: Current Research, Potentials and Limitations, 2010 Geoarcheology 109;
Bifeng Hu et. al., Application of portable XRF and VNIR sensors for rapid assessment
of soil heavy metal pollution, 2017 Plos One 0172438.
1

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not go directly to the general acceptance of pXRF as a scientifically
reliable method for measuring bone lead—in fact, Dr. Hu himself
participated in some of Dr. Specht’s studies. For instance, he co-authored
the 2016 study conducted on children in China. Dr. Hu also testified that
pXRF is not “widely used.” Id. But so long as pXRF is scientifically
reliable, the fact that it is not widely used does not make it inadmissible.2
As Daubert itself concluded, “‘general acceptance’ is not a necessary
precondition to the admissibility of scientific evidence…but the Rules of
Evidence…do assign to the trial judge the task of ensuring 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.
In the end, VNA’s argument again amounts to a challenge to the
use of pXRF to measure bone-lead in children. But “challenges to the
application of a methodology go to the weight of the evidence, not its
admissibility.” United States v. McCluskey, 954 F. Supp. 2d 1224, 1251
(D.N.M. 2013) (collecting cases). The pXRF technology itself is widely
accepted in the scientific community. Recent publications likewise

VNA also cites to media reports and the reactions of a local medical doctor in
Flint. These citations are plainly irrelevant to the general acceptance of pXRF
technology in the relevant scientific community.
2

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validate the use of pXRF to measure bone lead in human subjects
specifically. Defendants may cast doubt on the application of this
technology to the children in this case—but the trial is the appropriate
place for such arguments, and a jury the appropriate audience.
For these reasons, the Daubert factors each support a finding of
admissibility. Even if Defendants are right that Dr. Specht’s findings are
inaccurate or prone to error, the remedy is to mount an effective defense
at trial, not to exclude the testimony altogether. In re Scrap Metal, 527
F.2d at 532.
B. Relevance of Dr. Specht’s Opinions
VNA further argues that Dr. Specht’s results are not relevant, will
not aid the trier of fact, and are based on “nothing more than his own sayso.” (ECF No. 330-7, PageID.14464.) VNA again overstates its case.
Evidence is relevant for purposes of Rule 702 when there is a
“factual issue in dispute that expert testimony can clarify.” United States
v. LaVictor, 848 F.3d 428, 442 (6th Cir. 2017) (citing Lee v. Smith &
Wesson Corp., 760 F.3d 523, 527–28 (6th Cir. 2014)). As the Sixth Circuit
has recently reiterated, “the relevancy bar is low,” and “the rejection of
expert testimony is the exception, rather than the rule.” LaVictor, 848
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F.3d at 442 (quoting In re Scrap Metal, 527 F.3d at 529–30)); see also
Mactec, Inc. v. Bechtel Jacobs Co., LLC, 346 F. App’x 59, 77 (6th Cir.
2009) (relevancy requirement should be read broadly) (quoting Morales
v. Am. Honda Motor Co., 151 F.3d 500, 516 (6th Cir. 1998)).
It is beyond dispute that the fact and degree of Plaintiffs’ exposure
to lead is one of the central fact questions in this case. Indeed, Michigan
law requires Plaintiffs to provide evidence of the fact of exposure. E.g.,
Powell-Murphy v. Revitalizing Auto Comm’s Environ. Response Trust,
333 Mich. App. 234, 253 (2020). Dr. Specht’s testimony clearly goes to
this central fact. It is therefore relevant.
VNA argues that Dr. Specht cannot helpfully contextualize his
measurements of Plaintiffs’ bone lead because there is no national
standard for ‘normal’ bone lead content. (ECF No. 343, PageID.21620–
21621.) Thus, VNA concludes, Dr. Specht’s determination that Plaintiffs
were subjected to a “substantial” exposure of lead is based on “nothing
more than his own say-so.” (Id.)
But VNA’s assertion that Dr. Specht provides no basis for his
opinion beyond his own hypothesizing is without merit. Dr. Specht points
to his own pediatric studies and a colleague’s study of children’s bone lead
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levels in Canada to justify his finding that the exposure was
“substantial.” (See ECF No. 431, PageID.32932–32942.) Both of these
studies found that children in unexposed control groups had a bone lead
content of approximately zero. Id.
The core of VNA’s argument against the relevance of this evidence
is that there are significant weaknesses in this comparison. Primarily,
Dr. Specht compares his own pXRF values to the KXRF measurements
in the other studies, whereas it would be more reliable to compare one
set of pXRF measurements to another. This is true, of course, but it does
not establish that Dr. Specht’s testimony is not relevant.3 Dr. Specht,
using appropriate scientific methods, determined a bone lead value for
each Plaintiff and assigned a significance to those results by comparing
them to other, peer-reviewed studies of children who were unexposed to
lead. Moreover, the fact and degree of exposure to lead in Plaintiffs is
clearly a “factual issue in dispute,” and Plaintiffs’ bone lead content is an

Nor does this weakness cast sufficient doubt on Dr. Specht’s methodology to
warrant exclusion under the Daubert factors, for the reasons set forth above. The
lack of comprehensive comparative data does not invalidate Dr. Specht’s
methodology. At most, it provides a promising avenue for “vigorous crossexamination.” In re Scrap Metal, 527 F.3d at 529.
3

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indicator of such exposure. Cf. LaVictor, 848 F.3d at 442. Accordingly, Dr.
Specht’s testimony is relevant.4
C. Dr. Specht’s Opinion Regarding the Half-Life of Lead in
Children’s Blood
VNA separately challenges Dr. Specht’s opinion that blood lead
measurements are highly time-sensitive because of the short half-life of
lead in children’s blood. (ECF No. 343, PageID.21636–21638.) Although
VNA asserts that this opinion is “unreliable,” it does not address Rule
702 or the Daubert factors. Instead, VNA argues that Dr. Specht failed to
review the broader literature and misrepresented his own findings.
These arguments have no merit.
Dr. Specht’s report includes discussion of several studies beyond
Dr. Specht’s own pediatric study in China to substantiate his opinion that
blood lead values are inaccurate and unhelpful markers of long-term
exposure. (See ECF No. 330-48, PageID.15628 (citing to six studies on
Defendants rely on a 1998 case from Pennsylvania which held that KXRF
bone lead measurements were not admissible because “there is no agreed upon
standard against which to test the readings.” Dombrowski v. Gould Elecs., Inc., 31 F.
Supp. 2d 436, 442 (M.D. Pa. 1998). At the time, KXRF was still not generally accepted
in the scientific community, and research on bone lead was a rarity. Id. at 442–43. As
has been explained above, that is no longer true. Moreover, decisions within the Sixth
Circuit consistently emphasize that the standard for relevance is low. Hence,
Dombrowski does not support Defendants’ arguments.
4

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blood lead measurements)). Dr. Specht’s published work also cites to
researchers in the broader literature drawing the same conclusion. See,
e.g., Specht (2019a) (“adult studies typically agree on a blood Pb half-life
of 20-30 days”) (citing sources)). VNA’s claim that Dr. Specht relies
exclusively on his own work while disregarding the broader literature is
inaccurate.
It is true that Dr. Specht’s report asserts that “children have a blood
lead half-life of less than one week,” (ECF No. 330-48, PageID.15627)
whereas his studies show a half-life of 9.96 days (plus or minus 3.92) or
19.3 days (plus or minus 14.1), depending on age. (ECF No. 343,
PageID.21637.) This minor inconsistency does not affect the central
conclusion drawn by Dr. Specht: that the half-life of lead in children’s
blood is “incredibly time sensitive.” (ECF No. 330-48, PageID.15627.)
VNA attempts to assail that conclusion by citing their own expert,
who draws contrary conclusions. (ECF No. 343, PageID.21638.) But this
battle of the experts is properly fought at trial. Phillips v. Cohen, 400
F.3d 388, 399 (6th Cir. 2005) (competing expert opinions present a
“classic battle of the experts,” and it is up to a jury to “evaluate the
credibility of each expert”) (quoting Cadmus v. Aetna Casualty and
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Surety Co., 1996 WL 652769 (6th Cir., Nov. 7, 1996)); accord Fox v. Mass.
Bay Ins. Comp., No. 2:13-cv-02567, 2015 WL 11017961 at *3 (W.D. Tenn.
2015) (Daubert test does not require “that the court look to one expert to
determine the credibility of another expert’s determination.”)
Accordingly, this portion of Dr. Specht’s report is also admissible.
D. Prejudice and Relevance Under Rules 401(a), 402 and 403
Lastly, VNA argues that Dr. Specht’s testimony and reports are not
admissible because they are irrelevant under Federal Rules of Evidence
401(a) and 402, and prejudicial under Federal Rule of Evidence 403. (ECF
No. 343, PageID.21633-36.)
For the reasons stated above, Dr. Specht’s testimony is relevant. It
is therefore admissible under Rules 401(a) and 402, just as it was
admissible under Rule 702.
Rule 403 provides “a balancing test for excluding relevant
evidence,” which is “strongly weighted toward admission.” United States
v. Asher, 910 F.3d 854, 860 (6th Cir. 2018). Exclusion is appropriate only
when the “probative value is substantially outweighed by the danger of
unfair prejudice.” Id. (citing Huddleston v. United States, 485 U.S. 681,
687 (1988)). Where expert testimony presents a risk that a jury will
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misunderstand it, “a district court…could require advocates to describe
it in a way that will not generate unfair prejudice or mislead the jury.”
Gissantaner, 990 F.3d at 470 (citing Fed. R. Evid. 403) (cleaned up).
Whether and to what degree Plaintiffs were exposed to lead is one
of the central questions of this case. Dr. Specht’s testing goes directly to
that question and is therefore highly probative.
To be sure, as VNA points out, Dr. Specht’s testimony does not go
to causation, or to any particular Defendant’s responsibility for the
exposure. VNA’s primary concern is that Dr. Specht’s testimony will be
misunderstood by the jury and cause a hasty inference of causation. But
Dr. Specht has clearly stated that he is not an expert on causation, and
Plaintiffs assure the Court they will not use Dr. Specht’s testimony or
report to establish causation. (ECF No. 368, PageID.23373) (“[Dr.
Specht’s] anticipated testimony is limited to the results of the pXRF
testing.”)
Because the results of pXRF testing are highly relevant, and
Defendants’ concerns can be mitigated by a proper jury instruction (and,
if appropriate, an order preventing Dr. Specht from testifying on

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causation), Dr. Specht’s expert testimony is not inadmissible under Rule
403.
IV.

Conclusion

For the reasons set forth above, Dr. Specht’s opinions are not
unreliable, irrelevant, or more prejudicial than probative. VNA’s motion
to exclude his testimony and report is therefore DENIED.
IT IS SO ORDERED.
Dated: November 17, 2021
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First-Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on November 17, 2021.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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