Walters et al v. Flint et al
Filing
451
OPINION AND ORDER granting in part and denying in part 338 Motion to exclude testimony and report of Dr. Joseph Graziano. Signed by District Judge Judith E. Levy. (WBar)
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 GRANTING IN PART AND DENYING IN
PART 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. JOSEPH
GRAZIANO [338]
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 Federal Rule of Evidence 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
Operating Services, LLC (collectively “VNA”) to exclude the testimony
and report of Dr. Joseph Graziano (ECF No. 338.) The LAN and LAD
Defendants join VNA’s motion. (ECF No. 344.) For the reasons set forth
below, VNA’s motion to exclude is GRANTED IN PART and DENIED IN
PART.
I.
Background
Dr. Joseph Graziano is a Professor of Environmental Health
Sciences and Pharmacology at Columbia University. (ECF No. 369-3,
PageID.23631.) Dr. Graziano holds a Ph.D. in physiology and is a leading
expert on the effects of metal-poisoning. (ECF No. 369-3, PageID.23630.)
He has worked for decades on developing medication to treat lead
poisoning and is the inventor of what is now the standard treatment for
lead poisoning. (See ECF No. 433, PageID.33278-33280; PageID.3328733292.) Dr. Graziano’s qualifications as an expert are not disputed.
Plaintiffs seek to offer Dr. Graziano as one of their causation
experts. They retained Dr. Graziano to determine whether leadpoisoning can cause the adverse health effects they have experienced,
2
and to write a general report about the medical consequences of exposure
to lead. In preparation for his report, Dr. Graziano conducted a
comprehensive literature review. That review covered many studies, but
one source in particular is of recurring importance. The Agency for Toxic
Substances and Disease Registry (“ATSDR”)1 has
published a
Toxicological Profile of Lead which contains an exhaustive review of
decades of academic work on the harmful effects of lead. Agency for Toxic
Substances and Disease Registry, Toxicological Profile for Lead (Aug.
2020)
(https://www.atsdr.cdc.gov/ToxProfiles/tp13.pdf)
(“Toxicological
Profile”). The Toxicological Profile is one of the most thorough and
authoritative sources available on the topic of lead-poisoning.
Dr. Graziano’s primary conclusion is that “overwhelming” scientific
evidence proves that lead poisoning harms the intellectual and
neurobehavioral
functioning
of
children.
(ECF
No.
330-32,
PageID.15424.) That conclusion is supported by the Toxicological Profile,
which itself reviews 40 longitudinal studies on lead’s neurocognitive
The ATSDR is the federal agency directed to implement certain provisions of the
Comprehensive Environmental Response, Compensation and Liability Act. See 42
U.S.C. §9604(i) (setting forth responsibilities of the ATSDR). The preparing of
toxicological profiles is one of those responsibilities. See id. at §9604(i)(3).
1
3
effects in children. See Toxicological Profile, at 140-176.2 But Dr.
Graziano also finds support for his conclusion elsewhere. For instance, a
2005 study found by a 95% confidence level that every 1g/dl increase in
blood lead corresponded to a -2.9 change in full-scale IQ. Bruce P.
Lanphear et al., Low-level environmental lead exposure and children's
intellectual function: an international pooled analysis, 113 Environ
Health Perspect. 894-899 (2005) (“Lanphear (2005)”). Dr. Graziano
concludes that any “undue exposure” to lead “is harmful to a child’s
intellectual development.” (ECF No. 330-32, PageID.15430.)
Dr. Graziano next emphasizes that the neurological effects of leadpoisoning affect “dimensions of function that go well beyond just
intelligence and IQ scores.” (ECF No. 330-32, PageID.15424.) As set forth
in the Toxicological Profile, lead-poisoning is additionally associated with
“altered behavior and mood (e.g., attention, hyperactivity, impulsivity,
irritability, delinquency) and altered neuromotor and neurosensory
function.” Id. Behavioral effects can include aggression and antisocial
behaviors. (Id. at PageID.15427.) Indeed, some studies have found a
The Toxicological Profile’s analysis is not limited to blood lead levels. It also reviews
studies associating bone lead levels and neurological harms. See Toxicological Profile,
at 174-176.
2
4
direct link between high bone lead content and social, attention, and
aggression problems. Herbert L. Needleman et al., Bone lead levels and
delinquent behavior, 275 Jama 363-369 (1996).
According to Dr. Graziano, lead-poisoning can also contribute to
other neurological complications, such as schizophrenia and Parkinson’s
disease. (ECF No. 330-32, PageID.15425-15426) (citing Ezra B. Susser et
al., Prenatal factors and adult mental and physical health. 44 Can. J.
Psychiatry 326-334 (1999); Ezra S. Susser et al., The design of the
prenatal determinants of schizophrenia study, 26 Schizophrenia Bull.
257-273 (2000)). Finally, Dr. Graziano notes that exposure to lead can
increase the risk for renal disease and hypertension. (ECF No. 330-32,
PageID.15429-15430.)
On May 11, 2021, VNA filed a motion seeking to exclude Dr.
Graziano’s opinions. (ECF No. 338.) 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
5
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
published and subjected to peer review, (3) what the known error 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
6
proffered expert meets the standards of Rule 702 as interpreted by
Daubert. Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000) (quoting
Daubert, 509 U.S. at 592).
III. Analysis
Dr. Graziano is one of Plaintiffs’ general causation experts.
Michigan law requires toxic tort plaintiffs to show general causation,
which “pertains to whether a toxin is capable of causing the harm
alleged.” Powell-Murphy v. Revitalizing Auto Comm’s Environ. Response
Trust, 333 Mich. App. 234, 250 (2020) (quoting Lowery v. Enbridge
Limited P’ship., 500 Mich. 1034, 1043 (2017) (Markman, C.J.,
concurring)). Toxic tort plaintiffs must also show “specific causation,”
that is, they must also have “proof that exposure to the toxin more likely
than not caused the plaintiff’s injury.” Id. (quoting Lowery, 500 Mich. at
1044)). But that is the job of other experts: Dr. Graziano speaks only to
general causation.
The parties’ briefs debate at length whether Dr. Graziano’s
testimony could suffice to prove general causation under Michigan law.
It must be clarified at the outset that this is not at issue in this motion.
Daubert does not require that an expert singlehandedly deliver plaintiffs
7
a win on any particular legal issue, and Dr. Graziano is not the only
witness who Plaintiffs have offered on this topic. At summary judgment,
the Court will consider whether Plaintiffs have raised a material
question of fact as to the element of general causation. At this stage the
question is only whether Dr. Graziano’s opinions are sufficiently relevant
and reliable to be admissible under Federal Rule of Evidence 702 and
Daubert.
VNA argues that they are not, for four reasons. First, while they
concede that lead exposure can cause intelligence decrements, VNA
challenges Dr. Graziano’s opinion that any exposure to lead could cause
such harm. (ECF No. 330-4, PageID.14301-14310.) Next, VNA objects to
Dr. Graziano’s opinions about every other alleged health effect of lead
exposure because, it argues, (1) Dr. Graziano does not reliably identify
causal links, and (2) testimony regarding health conditions not suffered
by any Plaintiff is irrelevant. (Id. at PageID.14314-19.) Finally, VNA
asks the Court to bar Dr. Graziano from testifying generally about the
background of the Flint water crisis. (ECF No. 338, PageID.20239.)
For the reasons set forth below, the Court finds that Dr. Graziano’s
methods and conclusions are scientifically reliable and are admissible
8
under Daubert and Rule 702. However, the Court agrees with VNA that
Dr. Graziano’s testimony regarding health conditions from which no
Plaintiff suffers should be excluded, as should his opinions about the
causes of the Flint water crisis. Moreover, Dr. Graziano will be required
to clarify his opinion that any exposure to lead causes neurocognitive
harm.
A. ‘Any Exposure is Harmful’ Testimony
According to VNA, Dr. Graziano’s opinion that any exposure to lead
can cause cognitive harms is fundamentally inconsistent with the basic
principle of toxicology that the dose of exposure to a toxin determines the
response. (ECF No. 330-8, PageID.14301.) Moreover, VNA argues, courts
routinely disallow testimony to the effect that any dose of a toxin can
cause harm. Indeed, VNA claims that a “bedrock principle of Michigan
law” prohibits such testimony.3 (ECF No. 338, PageID.20221.)
Note that federal procedural law applies to this diversity case. Legg v. Chopra, 286
F.3d 286, 289 (6th Cir. 2002) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)).
Whether a witness’ testimony is admissible under Rule 702 and Daubert is a
procedural issue. Id. at 291. Accordingly, it is governed by federal, not Michigan law.
Michigan law governs the substantive question whether Plaintiffs can establish the
element of causation, but as has already been noted, that question is not at issue
here. In any event, neither Michigan nor federal law supports VNA’s contentions.
3
9
VNA is incorrect. There is no general rule prohibiting an expert
from opining that a toxin can cause harms at any level of exposure, so
long as that opinion is otherwise reliable. In fact, there is no blanket
prohibition on testimony with any particular content, because that would
be fundamentally inconsistent with Daubert. “Science is not an
encyclopedic body of knowledge about the universe. Instead, it represents
a process for proposing and refining theoretical explanations about the
world.” Daubert, 509 U.S. at 590 (emphasis in original). The Court’s
gatekeeping obligation is limited to determining whether an expert has
followed that process in a reliable way. United States v. Bonds, 12 F.3d
540, 556 (6th Cir. 1993) (Daubert evaluation concerns only the experts
“methodology and principles,” not her conclusions). None of VNA’s
caselaw shows otherwise.
VNA first cites to cases setting forth the element of specific
causation. (Id. at PageID.14302 (citing Lowery v. Enbridge Energy Ltd.
P’ship., 500 Mich. 1034, 1043 (2017) (Markman, C.J., concurring); PowellMurphy, 333 Mich. App. 234, 249-251 (2020)). These cases explain that a
plaintiff can show specific causation only by a showing “of enough
exposure to cause the plaintiff’s specific illness.” Lowery, 500 Mich. at
10
1043. After all, “a substance may cause different harmful effects in
different doses.” Id. at 1044. VNA’s reliance on this law is doubly
misplaced. The Lowery and Powell-Murphy passages on which they rely
discuss what must be shown to satisfy the specific causation element at
trial; this motion is about the admissibility of general causation
testimony.4
VNA next cites to a set of cases applying Daubert to specific
causation expert testimony. These cases stand for the general rule that a
specific causation expert cannot rely exclusively on the fact that ‘any
exposure is harmful’ to infer that the exposure caused the harm to
plaintiff. For instance, in Nelson v. Tenn. Gas Pipeline Co., an expert who
simply assumed that a toxin’s dose was sufficient to harm the plaintiffs
could not reliably testify that the toxin was the cause of those plaintiffs’
injuries. 243 F.3d 244, 252-53 (6th Cir. 2001). Similarly, in Pluck v. BP
Oil Pipeline Co., an expert impermissibly relied on a ‘no safe exposure’
theory to conclude that the exposure in fact caused the plaintiff’s injury.
640 F.3d 671, 675 (6th Cir. 2011); See also Adams v. Cooper Indus., Inc.,
VNA’s citations to secondary sources about the element of specific causation are not
applicable for the same reasons.
4
11
No. 03-476-JBC, 2007 WL 2219212 (E.D. Ky. July 30, 2007) (rejecting
specific causation testimony because it did not consider dose and
exposure data.)
In other words: a specific causation expert may not infer from the
fact that a toxin is always harmful that a particular plaintiff was actually
injured by exposure to that toxin. Such an inference is improper because
it overlooks the possibility that a plaintiff’s injuries were caused by
something else. See, e.g., Nelson, 243 F.3d at 253 (there was “simply no
basis for [the expert’s] assumption that PCB’s, and not one of numerous
other factors, was the cause of plaintiffs’ reported maladies.”); McClain
v. Metabolife, 401 F.3d 1233, 1243-44 (11th Cir. 2005) (discussing
similarly fallacious causation testimony). But Dr. Graziano, a general
causation expert, does not make that mistake. His testimony is not that
because lead is always dangerous, it must have caused these Plaintiffs’
injuries. Dr. Graziano simply opines that lead is always harmful. Nothing
in Nelson or Pluck forbids such testimony.
VNA cites to some cases involving Daubert evaluation of general
causation testimony, but none of them stand for the rule VNA advances.
In Wills v. Amerada Hess Corp. 379 F.3d 32 (2d Cir. 2014), the Second
12
Circuit rejected an expert who intended to advance the “oncogene theory
of causation” at trial. Wills, 379 F.3d at 38. According to this theory, some
toxins can cause cancer through the interaction of a single molecule of
toxin with single human cell. Id. The court rejected that opinion because
“it had not been tested or subjected to peer review…there was no known
potential error rate,” and it was not supported by a single epidemiological
study. Id. at 39-40. So: the testimony in Wills was inadmissible because
it did not satisfy any of the ordinary Daubert factors—not because of a
purported “bedrock principle” that a witness may never testify that any
exposure to a toxin is dangerous. Had such a rule existed, the Second
Circuit’s analysis of the Daubert factors would have been wholly
superfluous.
Similarly, in Henricksen v ConocoPhillips Co., a district court
rejected the testimony of a general causation expert because the expert’s
opinions were completely unsupported by published work and based only
on the expert’s “personal beliefs.” 605 F.Supp.2d 1142, 1161 (E.D. Wash
2009). That testimony did not survive Daubert scrutiny because the
Ninth Circuit “requires general causation opinions to be supported by
13
reliable epidemiological studies, or, if there are none, a reliable
differential diagnosis.” Id.5
In sum: nothing supports VNA’s claim that a general principle of
law forbids Dr. Graziano from testifying to his opinion that any undue
exposure to lead can be harmful. The Court therefore applies the ordinary
Daubert standards to evaluate his testimony.
Dr. Graziano’s testimony is unquestionably based on scientifically
reliable research. “Since 1984, more than 40 epidemiological studies have
examined the relationship between children’s blood lead concentrations
below 10 g/dl and intellectual deficits.” (ECF No. 330-32, PageID.15.)
Several of these studies showed detrimental effects on intelligence with
blood lead concentrations as low as 0.9 g/dl and miniscule dentine lead
levels of 1 ppm. See, e.g., Lanphear (2005); Bruce P. Lanphear, Erratum:
Low-level environmental lead exposure and children’s intellectual
function: an international pooled analysis, 127 Environ. Health Perspect.
VNA also cites to cases that disqualify experts for reasons wholly unrelated to their
causation opinions, such as Whiting v. Boston Edison Co., where the court
disqualified an expert without any relevant expertise. 891 F.Supp.12, 25 (D. Mass
1995).
5
14
9 (2019);6 Joel Schwartz, Low-Level Lead Exposure and Children’s IQ: A
Meta-analysis and Search for a Threshold, 65 Environmental Research
42, 53 (1994). The Toxicological Profile itself concludes that there is “no
evidence for a threshold” for lead toxicity in children. Toxicological
Profile, at 133.
VNA asserts that Dr. Graziano should not be permitted to rely on
the Toxicological Profile because it is a regulatory risk assessment and
therefore inappropriate for use in evaluating legal causation. (ECF No.
330-4, PageID.14306.) This is plainly untrue: the ATSDR does not set any
of the relevant regulatory standards—the CDC does.7 The Toxicological
Profile merely provides “public health officials, physicians, toxicologists
and other interested individuals and groups with an overall perspective
on the toxicology of lead.” Toxicological Profile, at 10. In any event, even
if the Toxicological Profile itself were an impermissible source, that
VNA claims this study is unreliable, but it must save attacks on the content of peerreviewed, published scientific work for trial. “Submission to peer-review generally
suffices under Daubert.” United States v. Gissantaner, 990 F.3d 457, 468 (6th Cir.
2021).
7 See CDC, Blood Lead Reference Value (April 21, 2021),
https://www.cdc.gov/nceh/lead/data/blood-lead-reference-value.htm.
6
15
would not undermine any of the studies it cites, which are ultimately the
basis for Dr. Graziano’s opinions.
What is clear from the scientific evidence reviewed by Dr. Graziano
is that (1) lead can cause negative cognitive outcomes at blood lead levels
as low as 0.9g/dl and dentine lead levels as low as 1 ppm, (2) there is no
evidence that a toxicity threshold exists for lead. These statistics,
combined with the undisputed fact that the natural environment also
contains lead, show Dr. Graziano’s opinion that “any undue [i.e.,
additional, unnatural] exposure…is harmful to a child’s intellectual
development” to be an eminently reasonable inference from the available
scientific data. (ECF No. 330-32, PageID.15430.) Experts may
permissibly draw such inferences. See In re Heparin Prod. Liab. Litig.,
803 F.Supp.2d 712, 742 (N.D. Oh. 2011) (“to be considered appropriately
scientific, the expert need not testify to what is ‘known’ to a certainty but
must only state an inference or assertion derived by the scientific
method.”) (quoting Jahn v. Equine Serv., PSC, 233 F.3d 382, 388 (6th Cir.
2000)).
VNA next argues that Dr. Graziano’s opinion is also irrelevant
under Rule 702, and more prejudicial than probative under Rule 403.
16
According to VNA, Dr. Graziano’s opinions are irrelevant because
they do not help the jury determine whether the Plaintiffs’ injuries were
caused by lead. (ECF No. 330-4, PageID.14312-14313.) This argument
again ignores the fact that Dr. Graziano is only a general causation
expert. Plaintiffs are required to provide expert testimony on general
causation. Powell-Murphy, 333 Mich. App. at 249-251. The fact that Dr.
Graziano does not also testify to specific causation clearly does not render
his general causation testimony irrelevant.
Because Dr. Graziano’s testimony goes to a central element of this
case, it is also highly probative. The exclusion of evidence under Rule 403
is appropriate only when its “probative value is substantially outweighed
by the danger of unfair prejudice.” United States v. Asher, 910 F.3d 854,
860 (6th Cir. 2018) (citing Huddleston v. United States, 485 U.S. 681, 687
(1988)). Insofar as Dr. Graziano’s opinions simply reflect the results of
peer-reviewed scientific work, they do not present any danger of “unfair
prejudice.” Id. However, the Court understands VNA’s concern that the
scientific consensus that there is no evidence of a toxicity threshold is not
equivalent to affirmative evidence that there is no such threshold. Where
expert testimony is easily misunderstood, “a district court…could require
17
advocates to describe it in a way that will not generate unfair prejudice
or mislead the jury.” Gissantener, 990 F.3d at 470 (citing Fed. R. Evid.
403) (cleaned up). When presenting his opinions, Dr. Graziano will be
required to clarify that while studies show that very small amounts of
lead cause neurocognitive harms, they have not yet proven that any
specific amount of lead could do so.
B. Other Health Effects of Lead Poisoning
According to VNA, all of Dr. Graziano’s other opinions are also both
unreliable and irrelevant, because (1) Dr. Graziano concedes that science
has not proven that lead exposure can cause any health effect other than
intelligence decrements, and (2) Plaintiffs do not allege that they suffer
from many of the injuries discussed by Dr. Graziano.
To begin with the second argument: it is undisputed that no
bellwether
Plaintiff
suffers
from
hypertension,
renal
disease,
schizophrenia, Parkinson’s disease, or essential tremors. At oral
argument, Plaintiffs argued that testimony regarding these conditions is
nevertheless relevant because Plaintiffs face an increased risk of
suffering from them in the future. (ECF No. 424, PageID.31723.)
18
In Michigan, recovery for potential future illness is possible only if
a plaintiff can establish “with ‘reasonable certainty’” that she will
contract that illness. Larson v. Johns-Manville Sales Corp., 427 Mich.
301, 317-18 (Mich. 1986) (quoting Prince v. Lott, 369 Mich. 606, 609
(1963)); accord People v. Corbin, 312 Mich. App. 352, 365n3 (2015).
Plaintiffs do not claim that they can establish with a reasonable certainty
that they will eventually suffer from any of these conditions. Instead,
Plaintiffs seek to recast all of them as “symptoms” of their present
condition: being “lead poisoned.” (ECF No. 424, PageID.31724 (“those
ailments are symptomatic of lead poisoning.”)) But this recasting would
eviscerate the rule of Larson: it would convert every possible harm
resulting from any toxic exposure to a symptom of the condition of being
exposed. Cancer is not a symptom of asbestos exposure, but an illness
that can be caused by asbestos exposure. Larson, 427 Mich. at 317-18.
Similarly, the health risks identified by Dr. Graziano are not symptoms
of lead exposure but illnesses that may be caused by lead exposure.
Accordingly, Plaintiffs could meet the Larson burden only if they
established that they are “reasonably likely” to suffer from these
19
conditions in the future. Plaintiffs admit they cannot do so. (See ECF No.
424, PageID.31723-31725.)
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)). Because Plaintiffs
do not suffer from hypertension, renal disease, schizophrenia, essential
tremors, or Parkinson’s disease, and because they cannot meet the
Larson burden, the tendency of lead to cause those illnesses does not help
the jury resolve a “factual issue in dispute.” LaVictor, 848 F.3d at 442. It
is therefore not relevant for purposes of Rule 702. Moreover, because the
evidence is not probative and presents a risk of significant unfair
prejudice to the defendants, it is also inadmissible under Rule 403. Asher,
910 F.3d at 860.
In making this evidentiary ruling, the Court is limited to the
current record. Should Plaintiffs obtain evidence that they are in fact
likely to suffer from, or already suffer from, any of the conditions
considered by Dr. Graziano, they may request reconsideration of this
decision.
20
In addition, to the extent Plaintiffs planned to use Dr. Graziano’s
testimony to establish the public health importance of preventing lead
from leaching into a water supply, they are permitted to elicit general
testimony from Dr. Graziano to the effect that lead-poisoning can cause
serious medical conditions beyond those suffered by Plaintiffs.
This leaves Dr. Graziano’s opinion that lead can cause antisocial
and aggressive behaviors. Defendants assert that no Plaintiff has
displayed any such behaviors, but that is incorrect. Several Plaintiffs did
exhibit some mildly aggressive and antisocial behaviors. (ECF No. 33057, PageID.15734 (reporting some “behavioral disturbances” for R.V.);
ECF No. 330-56, PageID.15719-20 (noting aggressive behaviors and
volatile moods for A.T.), ECF No. 330-58, PageID.15747 (noting social
behavioral problems for D.W.)). Therefore, this portion of Dr. Graziano’s
testimony is not irrelevant.
VNA also argues that Dr. Graziano’s opinions regarding antisocial
and aggressive behaviors are inadmissible because they are unreliable.8
As has been noted above, VNA argues the same as to all the other health conditions,
but that issue is mooted by the exclusion of Dr. Graziano’s testimony as to those
health conditions on relevance and prejudice grounds.
8
21
According to VNA, Dr. Graziano’s report and testimony suggest only an
association between lead poisoning and these behaviors, not a causal
link. (ECF No. 330-4, PageID.14319.) This is dispositive, VNA claims,
because courts routinely exclude expert testimony that establishes only
an association. VNA incorrectly characterizes both Dr. Graziano’s
testimony and the law.
First, Dr. Graziano indeed opines that, for behavioral symptoms,
the science has not proven a causal link. (ECF No. 433, PageID.33381.)
But he immediately clarifies that in his view the great weight of the
evidence supports an inference that the behavioral symptoms are caused
by lead exposure. (See id., PageID.33382-33383) (discussing Bradford
Hill criteria as to the five health outcomes other than intelligence
decrements). Rule 702 permits such reasonable scientific inferences. See,
e.g., In re Heparin, 803 F.Supp.2d at 742 (quoting Jahn, 233 F.3d at 388).
Second, the cases cited by VNA stand for the unremarkable
proposition that evidence of mere association is not admissible as
causation testimony. For instance, VNA selectively quotes Nelson as
saying that “an association does not mean there is a cause-and-effect
relationship.” (ECF No. 330-8, PageID.14317.) But Nelson continues:
22
“before any inferences are drawn about causation, the possibility of other
reasons for the association must be examined, including chance, biases
such as selection or informational bias, and confounding causes.” Nelson,
243 F.3d at 253 (emphasis added.) Of course, the epidemiological studies
cited by Dr. Graziano do conduct precisely the examination that was
missing in Nelson.
VNA’s other cases are similarly inapplicable. In re Aredia concerns
testimony that certain medications could cause osteomyelitis of the jaw
by an expert who had never treated osteomyelitis, had no experience with
either medication, and had no evidence that the two were causally
related. In re Aredia & Zomea Prods. Liab. Litig., 483 F.App’x 182, 187
(6th Cir. 2012). And in Wells and Meister, courts rejected testimony
where the science did not establish even an association. Wells v.
Smithklein Beechamn Corp., 601 F.3d 375, 379 (5th Cir. 2010) (expert’s
evidence of association was based on a single paper, which was rejected
for publication); Meister v. Med. Eng.’g Corp., 267 F.3d 1123, 1129-30
(D.C. Cir. 2001) (causation testimony unreliable where evidence did not
even show mere association).
23
Unlike the experts in any of these cases, Dr. Graziano cites to peerreviewed, epidemiological studies which account for confounding
variables. (See ECF No. 330-32, PageID.15427-15428) (reviewing the
scientific literature). It is on the basis of those studies that Dr. Graziano
concludes that “[t]he weight of evidence relating childhood lead exposure
to antisocial behavior across these varied studies is therefore perceived
to be strong.” (Id. at PageID.15428.) Opinions based on similar
epidemiological studies are widely used to establish general causation at
trial. E.g., In re Meridia Prods. Liab. Litig., 328 F.Supp.2d 791, 800 (N.D.
Oh. 2004) (epidemiological studies are preferred mode of showing general
causation, though they are not required) (citing Conde v. Velsicol Chem.
Corp., 804 F.Supp.972, 1025-26 (S.D. Oh. 1992)); Henricksen, 605
F.Supp.2d at 1161 (Ninth Circuit requires epidemiological study or
differential diagnosis to show causation); In re Viagra Prods. Liab. Litig.,
572 F.Supp.2d 1071, 1078 (D. Minn. 2008) (“epidemiologic studies often
are used to assess an association between a drug and disease and in turn
general causation”) (citing In re Rezulin Prods. Liab. Litig., 369
F.Supp.2d 398, 406 (S.D.N.Y. 2005)); Reference Guide on Epidemiology,
in Reference Manual on Scientific Evidence 333, 338 (Fed. Jud. Ctr. 2d.
24
ed. 2000) (discussing use of epidemiological studies, warning against
using “the mere possibility of uncontrolled confounding” to call studies
into question).
“There are no certainties in science.” Daubert, 509 U.S. at 590. Dr.
Graziano, having carefully reviewed the literature, concludes that the
weight of the scientific evidence strongly suggests, but does not prove,
that lead exposure can cause antisocial and aggressive behaviors. That is
an accurate, indeed, cautious summary of the scientific consensus. It is
therefore admissible evidence.
C. Background on Flint Water Crisis
Finally, VNA objects to claims Dr. Graziano makes in his “brief
description of the Flint lead poisoning episode.” (ECF No. 330-32,
PageID.15421.) Dr. Graziano provided this background to explain the
“purpose of [his] report,” Id., and it seems unlikely he intends to testify
to any of it. However, Dr. Graziano does opine that “a sequence of
extremely poor engineering and policy decisions” led to the poisoning of
Flint residents (Id. at PageID.15422.)—a claim with which VNA
understandably takes issue. Because Dr. Graziano is not an expert on the
subject of engineering and not qualified to offer expert opinions about the
25
causes of the Flint water crisis, his opinions about what may have caused
the Flint water crisis are not admissible.
IV.
Conclusion
For the reasons set forth above, VNA’s motion to exclude Dr.
Graziano’s opinions and testimony is GRANTED IN PART and DENIED
IN PART.
IT IS SO ORDERED.
Dated: December 1, 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 December 1, 2021.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager
26
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?