Sunnycalb v. CSX Transportation, Inc.

Filing 71

ORDER denying 38 Motion in Limine; granting in part and denying in part 66 Motion to Strike. Signed by Judge Herman J. Weber on 8/13/12. (do1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

CHARLES SUNNYCALB,
Plaintiff,

v.

Case No. 1:10-cv-192-HJW

CSX TRANSPORTATION, INC.,
Defendant.

ORDER

Pending is the defendant=s AMotion in Limine@ (doc. no. 38), which
plaintiff opposes. The Court held a Daubert hearing on June 12, 2012, at
which plaintiff=s expert witness Dr. Barry Levy, M.D., and defendant=s
late-identified expert witness Dr. Laura Green, Ph.D., both testified. The
parties requested, and were granted, leave to file additional briefs,
which have now been filed (doc. nos. 64, 65, 70). Also pending is
plaintiff=s post-hearing AMotion to Strike Undisclosed Testimony of Dr.
Green and to Exclude Dr. Green from Trial, or Alternatively, For Leave to
Page 1 of 23 

Produce a Rebuttal Expert Witness@ (doc. no. 66), which defendant
opposes in part. Having fully considered the record, including the
motions, briefs, exhibits, testimony, oral argument, and applicable
authority, the Court will deny the defendant=s motion in limine, grant in
part and deny in part the plaintiff=s motion to strike Dr. Green’s hearing
testimony and bar her trial testimony, and grant plaintiff’s request for
leave to produce a rebuttal witness, for the following reasons:
I.

Background and Procedural History
On April 2, 2007, Charles Sunnycalb (Aplaintiff@) was working as an

engineer for CSX Transportation Inc. (Adefendant@ or ACSX@) and was
operating a locomotive in Ohio. The locomotive was equipped with a
Microphor toilet with a Achlorinator@ to treat waste that has been
flushed into a holding tank. The chlorinator contains chlorine pellets
that dissolve in the waste liquid.
The Material Safety Data Sheet (AMSDS@) for the active chemical in
the chlorine pellets indicates it is A[c]orrosive to eyes, skin, and mucous
membranes” and “[h]armful by inhalation and if swallowed@ (doc. no.
42-4 at 1). For inhalation, the MSDS provides that the chemical is

Page 2 of 23 

Airritating to the nose, mouth, throat, and lungs . . . can result in
shortness of breath, wheezing, choking, chest pain, and impairment of
lung function@ Id. For ingestion, the MSDS provides that Airritation . . .
can occur to the entire gastrointestinal tract . . . characterized by
nausea@ Id. For eye contact, the chemical can cause Asevere irritation.@
The MSDS explains that Athis product is corrosive to all tissues
contacted and upon inhalation, may cause irritation to mucous
membranes and respiratory tract.@ Id. The MSDS further indicates that
Aafter spillage/leakage, hazardous concentrations in air may be found in
local spill area and immediately downwind@ and cautions Ado not put
water on this product as a gas evolution may occur.@ Id.
When plaintiff boarded the locomotive, he noticed an odor
(described as smelling like “wet rotting steel@ or like a “dumpster”) and
reported this to a railroad maintenance employee, who sprayed an
enzyme solution in the toilet area and on the surrounding floor. After the
train departed, plaintiff noticed the smell getting worse near Hamilton
and Carlisle, Ohio, and that it was making him cough. When the train
stopped, plaintiff went down into the toilet area in order to use the

Page 3 of 23 

toilet. He noticed that its water tank was cracked and that water had
leaked onto the floor, which was corroded and had holes in it.1 Plaintiff
indicates that when he used the toilet, a blast of air blew up through the
corroded floor and blew filthy water into his eyes and mouth. As the
train then began to move, air came up through the holes in the floor and
blew Amist@ around the interior of the cab. Plaintiff developed a bad
cough, burning eyes, and felt Anauseated@ (doc. no. 42-2 at 1,
AEmployee=s Incident Report@).
Plaintiff’s symptoms persisted and he sought medical treatment
from his physician, Dr. Shakkotai. He was referred to pulmonary
specialist, Dr. Sunil Dama, M.D., who examined plaintiff, conducted
various diagnostic tests, and subsequently diagnosed plaintiff with
reactive airway dysfunction syndrome (ARADS,@ described as Apersistent
asthma syndrome after high level irritant exposures@). This diagnosis
was later confirmed by the results of a methacholine challenge test.

1The subsequent ALocomotive Work Report@ reflects that the toilet tank
was Abusted leaking out on the floor,@ and the ACSX Inspection Report@
indicates Aholding tank bad. Toilet room floor rusted@ (doc. no. 42, Exs. E, F).
Although CSX thereafter disposed of the tank, the fact that it was “busted”
and leaking is not disputed.
Page 4 of 23 

On March 26, 2010, plaintiff filed this lawsuit against defendant
CSX pursuant to the Federal Employers= Liability Act (AFELA@) 45 U.S.C. '
51 et seq., for the injuries he sustained in this incident. CSK concedes
that plaintiff has the condition RADS, but disputes whether his chemical
exposure in this incident caused it. For the purpose of proving
causation of his injuries, plaintiff timely disclosed that he intends to
introduce

at

trial

the

opinions

and

testimony

of

his

treating

pulmonologist Dr. Sunil Dama, M.D., and his retained expert witness Dr.
Barry Levy, M.D. Defendant CSX timely disclosed its own retained
expert, pulmonologist Dr. James Lockey, M.D.
Shortly before the scheduled trial date in March 2012, CSX
challenged the opinions of Drs. Dama and Levy and sought to exclude
their testimony (doc. no. 38). The Court scheduled a Daubert hearing.
Meanwhile, in light of a sudden out-of-state job interview offered to
plaintiff

by

CSX,

plaintiff

requested

(and

was

granted)

a

trial

continuance. Trial was rescheduled for August 27, 2012.
CSX then sought leave to introduce the opinion of a late-identified
second expert witness, toxicologist Dr. Laura Green, Ph.D. (doc. no. 44).

Page 5 of 23 

Plaintiff moved to exclude Dr. Green=s report and testimony (doc. no.
47). This Court allowed Dr. Green to testify at the Daubert hearing,
subject to a financial sanction upon defendant for its late identification
(doc. no. 54 AOrder of May 25, 2012"). The Court reserved any decision
as to whether Dr. Green would be allowed to testify at trial. At the
hearing, the parties requested, and were granted permission to file
additional briefs (doc. nos. 64, 65, 70).
Plaintiff filed a post-hearing motion to strike Dr. Green=s hearing
testimony and bar her from testifying at trial, and alternatively, for
permission to produce a rebuttal expert witness at trial (doc. no. 66).
Defendant CSX opposes the motion, except as to plaintiff=s alternative
request for permission to produce a rebuttal witness (doc. no. 69).
These matters are fully briefed and ripe for consideration.
II.

Issues Presented
The main issues before this Court are: 1) whether the causation

opinions of plaintiff=s two experts, Dr. Barry Levy, M.D., and treating
pulmonologist Dr. Sunil Dama, M.D., pass scrutiny under Daubert and
may be introduced at trial; 2) whether all or part of the hearing

Page 6 of 23 

testimony of CSX=s late-identified expert witness, Dr. Laura Green,
Ph.D., should be stricken; 3) whether Dr. Green may testify at trial; and
4) whether plaintiff may produce a rebuttal witness.
III.

Discussion

A. Relevant Law
FELA provides for liability when an injury results “in whole or in
part” from the negligence of the employer. 45 U.S.C. § 51, et seq.;
Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 506 (1957)
(“Under this statute the test of a jury case is simply whether the proofs
justify with reason the conclusion that employer negligence played any
part, even the slightest, in producing the injury or death for which
damages are sought”); Daughenbaugh v. Bethlehem Steel Corp., 891
F.2d 1199, 1204 (6th Cir. 1989) (same).
A

plaintiff

must

show

a

causal

connection

between

the

defendant's negligence and plaintiff’s injuries. Mayhew v. Bell S.S. Co.,
917 F.2d 961, 963-64 (6th Cir. 1990). In chemical exposures cases (i.e.
“toxic torts”), a plaintiff must show that the chemical exposure could
cause a particular type of injury (general causation) and actually did

Page 7 of 23 

cause plaintiff’s own injury (specific causation). See Best v. Lowe's
Home Centers, Inc., 563 F.3d 171, 181 (6th Cir. 2009); Pluck v. BP Oil
Pipeline Co., 640 F.3d 671, 676-77 (6th Cir. 2011).
B.

Whether the Plaintiff=s Expert Witness Opinions are Admissible

under Rule 702 and Daubert
Rule 702 of the Federal Rule of Evidence provides that:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to . . .
determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience,
training, or education, may testify thereto in the
form of an opinion or otherwise, if (1) the
testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable
principles and methods, and (3) the witness has
applied the principles and methods reliably to the
facts of the case.
Fed.R.Evid. 702. District courts have a Agatekeeping role@ in screening
the use of expert testimony, and trial judges have discretion to
determine whether such testimony is admissible, based on whether it is
both relevant and reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 589-597 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
147 (1999); Newell Rubbermaid, Inc. v. The Raymond Corp., 676 F.3d

Page 8 of 23 

521, 527 (6th Cir. 2012). Courts have Abroad latitude@ in making this
determination. Kumho, 526 U.S. at 138. The inquiry is “a flexible one,”
and “[t]he focus . . . must be solely on principles and methodology, not
on the conclusions they generate.” Daubert, 509 U.S. at 594–95.
Reliability is determined by assessing Awhether the reasoning or
methodology underlying the testimony is scientifically valid,@ whereas
relevance depends upon Awhether [that] reasoning or methodology
properly can be applied to the facts in issue.@ Id. at 592-593. "[T]he
gatekeeping inquiry must be tied to the facts of a particular case,
depending on the nature of the issue, the expert's particular expertise,
and the subject of his testimony." Kumho, 526 U.S. at 150.
In its motion in limine, CSX argues that “plaintiff has not offered
proof that the chlorine allegedly present in the locomotive toilet was of
such a quantity and concentration so as to be able to cause RADS”
(doc. no. 38 at 5-6).

CSX argues that because the opinions of plaintiff’s

experts are not based on a precisely-measured level of plaintiff=s
chemical exposure, they lack Athe proper factual foundation@ and are
Aunreliable and inadmissible.@ CSX argues that absent a determination

Page 9 of 23 

of the plaintiff’s level of chemical exposure, Dr. Dama’s “specific
causation opinion fails” and “the testimony of general causation by Dr.
Levy is irrelevant” (Id. at 6).
In making this argument, CSX relies heavily on Pluck v. BP Oil
Pipeline Co., 640 F.3d 671 (6th Cir. 2011), for the proposition that the
level of chemical exposure must first be ascertained before offering a
causation opinion. Such case is readily distinguishable on its facts, and
CSX=s reliance on such case is misplaced. Pluck had developed
non-Hodgkins lymphoma after long-term exposure (approximately nine
years) to a relatively low level of benzene in well water contaminated
by a leaking BP pipeline. The plaintiff’s expert had indicated that
plaintiff’s exposure was Agreater than background@ and that there was
“no safe level for benzene in terms of causing cancer.” At deposition,
Pluck’s expert conceded that plaintiff had been exposed to other
sources of benzene, such as solvents and her extensive smoking habit.
The defendant pointed out that Pluck’s lymphoma may have been
attributable to other environmental factors and that the levels of
benzene in the well never exceeded the maximum permissible

Page 10 of 23 

contaminant level of 5 ppb designated by the EPA. Under those
circumstances, the court found that the expert's opinion that benzene
from the contaminated well had caused Pluck’s lymphoma was not
sufficiently “reliable” for purposes of Rule 702 and Daubert. The Court
of Appeals for the Sixth Circuit affirmed, observing that Pluck’s
physician had not "ruled out" other causes of plaintiff’s illness using the
standard differential diagnosis method.
Unlike Pluck v. BP Oil, which involved measurable long-term
low-level environmental exposure to a chemical that was also present
from other sources, the present case involves a sudden chemical
exposure from a single source resulting in immediate symptoms.
Plaintiff had no prior diagnosis of asthma. His chemical exposure was
unexpected and could not be measured after-the-fact, as it occurred
suddenly in a situation where the level of that chemical is not ordinarily
monitored and where any chlorine from the pellets would quickly
disperse, making measurement impossible.
In such circumstances, this circuit and others have held that
evidence of the precise level of chemical exposure is not necessary for

Page 11 of 23 

an expert to reliably indicate that the sudden exposure caused a
plaintiff’s illness. See Best v. Lowe’s Home Centers, Inc., 563 F.3d 171,
178 (6th Cir. 2009); Hardyman v. Norfolk & Western Ry. Co., 243 F.3d
255, 260 (6th Cir. 2000); Gass v. Marriott Hotel Services, 558 F.3d 419,
434 (6th Cir. 2009); Westberry v. Gislaved Gummi AB, 178 F.3d 257, 263
(4th Cir. 1999); Heller v. Shaw Industries, Inc., 167 F.3d 146, 154 (3rd
Cir. 1999).

Plaintiff cites numerous cases for this (doc. no. 42 at 6-9),

including cases specifically involving the condition RADS. See, e.g.,
Noffsinger v. Valspar Corp., Slip Opinion, 2012 WL 895496, *1-2 (N.D.Ill. ) (truck
driver developed the condition RADS after breathing fumes from leaking
55-gallon drums of Dynamprime paint, a solvent-based coating).

The decision by the Sixth Circuit Court of Appeals in the Best case
is especially pertinent. There, an unknown quantity of pool chemicals in
a punctured container splashed onto plaintiff=s face. Best, 563 at 176.
He suffered irritation and burning of his skin, nasal passages, and
mouth, dizziness, and shortness of breath. He eventually lost his sense
of smell completely. His physician conducted a thorough differential
diagnosis in which he “ruled in” various possible causes of plaintiff’s
condition and then reliably “ruled out” these causes. He reviewed the
Page 12 of 23 

MSDS sheet for the active ingredients in the product, which indicated
“harmful if inhaled.” Although Best’s physician could not determine the
precise level of chemical exposure, he could reliably form the opinion
that the inhalation of the chemical had caused his patient to lose his
sense of smell, based on the sudden chemical exposure and immediate
onset of symptoms, and given that the physician had carefully
considered and ruled out other possible causes. Best, 563 at 176. The
Sixth Circuit Court of Appeals reversed the trial court’s decision to
exclude the physician’s causation opinion.
Like the physician in Best, Drs. Dama and Levy both used the
well-accepted method of differential diagnosis. Differential diagnosis is
“a standard scientific technique of identifying the cause of a medical
problem by eliminating the likely causes until the most probable one is
isolated.” Pluck, 640 F.3d at 671.AThere is nothing controversial about
that methodology.@ Myers v. Illinois Central R. Co., 629 F.3d 639, 674
(7th Cir. 2010). Federal courts long have recognized this as an
appropriate method for making a determination of causation of a
person’s illness. Glaser v. Thompson Med. Co., 32 F.3d 969, 977 (6th Cir.

Page 13 of 23 

1994) (recognizing the admissibility of properly developed differential
diagnosis opinions); Hardyman, 243 F.3d at 260B61. “Many courts,
including our own, allow experts to employ a rule-in/rule-out reasoning
process for etiology as well as diagnosis.” Tamraz v. Lincoln Elec. Co.,
620 F.3d 665, 673-74 (6th Cir. 2010), cert. denied, 131 S.Ct. 2454 (2011).
“This circuit has long accepted this kind of testimony. Id. The case law
has used the term Adifferential diagnosis@ broadly to include Adifferential
etiology.@ Id.; Hardyman, 243 F.3d at 259 n. 2; English Dictionary 427 (2d
ed.1989) (defining “etiology” as the study of causation). Federal courts
have broadly used the term differential diagnosis to include differential
etiology and have recognized this as an appropriate method of
determining causation. Best, 563 F.3d at 178-79; Hardyman, 243 F.3d at
260B67; Glaser, 32 F.3d at 977.
The physician considers all relevant potential causes of the
symptoms and then eliminates alternative causes based on a physical
examination, clinical tests, and a thorough case history.@ Hardyman,
243 F.3d at 260 (quoting Federal Judicial Center, Reference Manual on
Scientific Evidence 214 (1994)); Best, 563 at 179. Courts should ask: (1)

Page 14 of 23 

Did the expert make an accurate diagnosis of the nature of the disease?
(2) Did the expert reliably rule in the possible causes of it? (3) Did the
expert reliably rule out the rejected causes? Tamraz, 620 F.3d at
673-74; Best, 563 F.3d at 179.
In the present case, with respect to general causation, plaintiff=s
expert, Dr. Barry Levy, M.D., reviewed a tremendous amount of relevant
medical and scientific literature pertaining to RADS and related
conditions, including the MSDS specification sheet that warns about
breathing problems and lung damage, and concluded that exposure to a
sufficient

amount

of

chlorine

can

cause

ARADS.@

Notably,

the

defendant’s own experts, pulmonologist Dr. James Lockey, M.D., and
toxicologist Dr. Laura Green Ph.D., also both agree that exposure to
chlorine in sufficient quantity can cause RADS (Lockey Dep. at 51;
Green Dep. at 42; Green Report, doc. no. 47-1 at & 20). The requirement
of general causation as an aspect of a scientifically-reliable causation
opinion is the key point of Daubert. General Elec. Co. v. Joiner, 522 U.S.
136, 146 (1997).
Although CSX argues that there is Ano evidence@ that the chlorine

Page 15 of 23 

was of sufficient quantity and concentration to cause the condition of
RADS, the case law does not require a determination of the precise
level of exposure in sudden accident situations. Moreover, the evidence
reflects that the train=s toilet system had a chlorinator, that the toilet
system was leaking, that the liquid was sprayed into plaintiff=s face and
“misted” in the cabin air, that the MSDS sheet specifically warns that
exposure to the active chemicals in the chlorinator pellets can cause
breathing difficulties and lung damage, and that plaintiff – who did not
have a history of asthma -- immediately developed the symptoms of
RADS after the sudden exposure in the incident at issue.
The medical documentation and deposition testimony reflect that
Dr.

Dama

physically

examined

plaintiff

and

conducted

various

diagnostic tests before determining that plaintiff suffered from ARADS@
due to his workplace chemical exposure. For example, Dr. Dama
performed a bronchoscopy which revealed that plaintiff=s lungs were
red-colored, indicating inflammation of the lung tissue (Dama Dep. at
23-24). He ordered cultures taken in order to rule out bacterial or viral
infection as a cause of the inflammation. Dr. Dama also performed a

Page 16 of 23 

cardiac work-up and ordered a CT scan for plaintiff. Id. at 24-26. Based
on the results of all these tests and procedures, Dr. Dama ruled out
various possible causes of plaintiff=s symptoms, including ordinary
asthma, heart failure, reflux, and rare diseases of the lung that can
cause wheezing. Id. at 52-53. Given strong temporal relation (i.e.,
immediate symptoms after a sudden chemical exposure) and given that
Dr. Dama ruled out other possible causes of plaintiff’s symptoms, Dr.
Dama’s methodology passes muster under Daubert.
Similarly, plaintiff’s expert witness Dr. Barry Levy, M.D., reviewed
an enormous amount of relevant information, including the plaintiff’s
case file (including the MSDS sheet), plaintiff’s medical records
diagnostic test results, and the scientific literature and medical studies
on RADS and related asthmatic conditions. Like Dr. Dama, he used the
accepted method of “differential diagnosis and/or etiology” to rule in all
possible causes of plaintiff=s symptoms and then systematically rule out
various causes based on the diagnostic test results and other data.
Plaintiff has fully described Dr. Levy’s methodology at length (doc. no.
70 at 2-6). Given the plaintiff’s history of a reported sudden exposure to

Page 17 of 23 

chemical inhalation and/or liquid irritant, his cluster of symptoms
(including breathing difficulties, nausea, and eye irritation), and the
results of various diagnostic tests, Dr. Levy concluded that plaintiff was
suffering from ARADS@ caused by his workplace chemical exposure.
Drs.

Dama

and

Levy

have

both

concluded

that

plaintiff=s

workplace exposure to chemicals in the liquid and/or vapor (“mist”)
from the leaking toilet system caused plaintiff to develop RADS. These
opinions are premised on differential diagnosis and/or etiology, as well
as a strong temporal relationship between the locomotive incident and
the onset of plaintiff’s symptoms. The opinions of Drs. Dama and Levy
involved thorough and independent analysis of plaintiff’s symptoms, the
possible causes, the results of various diagnostic tests, and the most
likely explanation for his illness. Although CSX criticizes aspects of
their opinions, their methodology satisfies the requirements of Daubert.
Any alleged weaknesses in the experts’ methodology will affect the
weight that such opinions are given at trial, but not their threshold
admissibility. Best, 563 F.3d at 182. The doctors’ opinions will properly
be subject to cross-examination at trial.

Page 18 of 23 

C.

Whether the Defendant=s Late-Identified Expert Witness Dr. Green

May Testify at Trial
In its prior Order, this Court allowed the defendant=s late-identified
witness, Dr. Laura Green,. Ph.D., to testify at the Daubert hearing,
subject to an appropriate sanction of resulting costs for the extra
discovery expenses incurred by plaintiff. At the Daubert hearing, Dr.
Green=s testimony largely pertained to Dr. Levy=s methodology and was
presented in an effort to challenge Dr. Levy=s expert opinion on
causation.

In its prior Order, this Court reserved decision as to

whether Dr. Green would be permitted to testify at trial.
The Court now decides this remaining question and concludes
that Dr. Green may testify at trial, subject to the restriction that her
testimony must be limited to matters within her expertise, i.e. general
causation, rather than actual diagnosis of a patient’s illness. While Dr.
Green is highly trained as a toxicologist, plaintiff correctly points out
that she is not a physician and admittedly may not diagnose a patient’s
illness. A[A] district court judge asked to admit scientific evidence must
determine whether the evidence is genuinely scientific, as distinct from

Page 19 of 23 

being . . . speculation offered by a genuine scientist.@ Tamraz, 620 F.3d
at 677 (quoting Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir.
1996)); see also, Cooley v. Lincoln Elec. Co., 693 F.Supp.2d 767, 773
(N.D.Ohio 2010) (excluding testimony of defense expert toxicologist in
case involving employees injured by inhaling toxic manganese fumes).
Courts view with special caution expert testimony prepared solely for
purposes of litigation, rather than flowing from an expert's line of
scientific or technical work. In re Aredia and Zometa Prods. Liability
Litig., 2012 WL 2016249, *7 (6th Cir. (Tenn.)) (citing Johnson v.
Manitowoc Boom Trucks, Inc., 484 F.3d 426, 434-35 (6th Cir. 2007).
While Dr. Green, based on her training and education, could
properly indicate in her report that exposure to chlorine in sufficient
quantity can cause RADS (doc. no. 47-1 at & 20), other parts of her
report were speculative and ventured into subjects upon which she was
not qualified to render an opinion, i.e. specific causation (see, e.g., & 22
speculating that plaintiff Amay have been coming down with influenza@).
At the hearing, defense counsel elicited testimony from Dr. Green about
plaintiff’s RADS diagnosis and inquired about records indicating that

Page 20 of 23 

plaintiff had experienced gastro-intestinal complaints (i.e. nausea and
Afeeling ill@) after the incident. Dr. Green again speculated that plaintiff
may have been coming down with influenza. Dr. Green may not
speculate about or diagnose the plaintiff’s illness, and such testimony
does not suggest any deficiency in Dr. Dama=s differential diagnosis as
plaintiff=s treating physician, since Dr. Dama reliably ruled out other
causes of plaintiff’s symptoms.

According to the MSDS, exposure to

the active chemicals in the chlorine pellets may result in symptoms
including gastrointestinal complaints (i.e. Asevere abdominal pain,
vomiting@), and plaintiff=s reported complaints of Anausea@ and “feeling
ill” are essentially consistent with this.
IV.

Conclusion
Upon review of the record, and after carefully considering the

testimony and argument at the Daubert hearing, the Court concludes
that the testimony and/or opinions of both Dr. Dama and Dr. Levy are
Areliable and relevant@ under Rule 702 and Daubert and may be
introduced at trial.

Both physician-experts utilized the accepted and

valid methodology of differential diagnosis and/or etiology in providing

Page 21 of 23 

their causation opinions that plaintiff’s RADS was due to sudden
workplace chemical exposure. Their opinions are based on sufficient
facts and data, used reliable principles and methods, and applied those
principles and methods reliably to the facts of plaintiff’s case. Their
testimony will assist the trier-of-fact to determine relevant matters in
this case.
The defendant=s late-identified expert witness, Dr. Laura Green,
Ph.D., testified at the Daubert hearing on matters beyond her expertise
as a toxicologist, and this Court has already sustained various
objections to such testimony. While Dr. Green will be permitted to
testify at trial, her testimony will be limited to subjects within her
expertise. In other words, she may testify only as to general causation,
rather than any diagnosis (i.e. specific causation) of plaintiff’s RADS.
Plaintiff may produce a rebuttal witness.

Accordingly, the defendant=s AMotion in Limine@ (doc. no. 38) is
DENIED; the plaintiff=s AMotion to Strike@ is GRANTED insofar as Dr.
Green’s hearing testimony as to specific causation shall be stricken,

Page 22 of 23 

but DENIED to the extent that Dr. Green may testify at trial; and
plaintiff=s alternative

request

to

produce

a

rebuttal

witness

GRANTED.
IT IS SO ORDERED.
s/Herman J. Weber
Herman J. Weber, Senior Judge
United States District Court

Page 23 of 23 

is