Burton v. American Cyanamid Co et al

Filing 1119

ORDER signed by Judge Lynn Adelman on 1/25/19 DENYING motion to exclude causation testimony of Idit Trope 601 ; DENYING motion to exclude opinions of James Besunder 672 ; DENYING motion to exclude testimony of Peter Karofsky 578 ; GRANTING IN PAR T AND DENYING IN PART motion to exclude testimony of William Banner 694 ; GRANTING IN PART AND DENYING IN PART motions to exclude certain opinions and testimony of David Jacobs 632 ; DENYING motions to exclude opinions of Jenifer Heath 660 ; DENYI NG motion to exclude opinions of Timothy Riley 541 ; DENYING motions to exclude opinions and testimony of Vanessa Elliot Bell; GRANTING motions to exclude opinions of Elissa Benedek 715 ; DENYING motions to exclude expert opinion testimony of Dr. B rian Magee; GRANTING motions to exclude expert opinion testimony of David Schretlen 590 ; DENYING motions to exclude expert opinions and testimony of John Sharpless 557 ; DENYING motions to exclude opinions of Laurence Steinberg 657 ; GRANTING mot ions to exclude testimony of Dean Webster 666 ; DENYING Cesar Sifuentes' motion to exclude testimony of Roxanne Tibbits (No. 10-c-75 #409); DENYING motion to exclude certain testimony of Tatiana Joseph (No. 10-c-75, #473); and DENYING Cesar Sifuentes' motion to exclude expert opinions and testimony of Sheila Moore (NO. 10-c-75 #448). (cc: all counsel) (jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GLENN BURTON, JR.,
Plaintiff,
v.

Case No. 07-CV-0303

AMERICAN CYANAMID et al.,
Defendants;
RAVON OWENS,
Plaintiff,
v.

Case No. 07-CV-0441

AMERICAN CYANAMID et al.,
Defendants;
CESAR SIFUENTES,
Plaintiff,
v.

Case No. 10-CV-0075

AMERICAN CYANAMID et al.,
Defendants.

DECISION AND ORDER
In each of the three above-captioned cases, the plaintiff claims that he was
injured when, as a young child, he ingested paint that contained white lead carbonate
(WLC). Each plaintiff proceeds against the same five defendants: American Cyanamid
Co. (“Cyanamid”), Armstrong Containers, Inc. (“Armstrong”), E.I. DuPont de Nemours
and Company (“DuPont”), Atlantic Richfield Company (“Atlantic Richfield”), and
Sherwin-Williams Co. (“Sherwin-Williams”). The cases have been consolidated for trial.
This decision and order will address several motions to exclude from trial the opinions

1

and testimony of various expert witnesses. I have rehearsed the legal theories and facts
underlying these cases at length in several prior orders and will not reproduce them
here.
I.

DAUBERT STANDARD

Generally, relevant evidence is admissible at trial. Fed. R. Evid. 402. Rule 401
provides that “[e]vidence is relevant if (a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) the fact is of consequence
in determining the action.” Fed. R. Evid. 401. Rule 403 further provides that I may
exclude relevant evidence “if its probative value is substantially outweighed by a danger
of one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R.
Evid. 403.
The admissibility of expert testimony is governed by Federal Rule of Evidence
702 and Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Ervin
v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir.2007). Rule 702 provides that:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine
a fact in issue; (b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and (d) the expert has reliably applied the principles and methods
to the facts of the case.
The inquiry consists of three general areas: (1) the testimony must be “helpful,”
which dovetails with the relevance requirements of Fed. R. Evid. 401–403; (2) the
expert must be qualified by knowledge, skill, experience, training, or education; and (3)
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the testimony must be reliable and fit the facts of the case. Lyman v. St. Jude Medical
S.C., Inc., 580 F.Supp. 2d 719, 722 (E.D.Wis.2008).
Under the third part of the analysis, I examine whether (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. I am to act “as a ‘gatekeeper’ for expert testimony,
only

admitting

such

testimony

after

receiving

satisfactory

evidence

of

its

reliability.” Dhillon v. Crown Controls Corp., 269 F.3d 865, 869 (7th Cir.2001). It is not
my role to determine whether an expert’s opinion is correct; I consider only “whether
expert testimony is pertinent to an issue in the case and whether the methodology
underlying that testimony is sound.” Schultz v. Akzo Noble Paints, LLC, 721 F.3d 426,
431 (7th Cir. 2013), citing Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000).
The proponent of the expert bears the burden of demonstrating that the expert's
testimony would satisfy the Daubert standard. Lewis v. CITGO Petroleum Corp., 561
F.3d 698, 805 (7th Cir. 2009); Fed. R. Evid. 702 advisory committee's note (2000
Amends.) (“[T]he admissibility of all expert testimony is governed by the principles of
Rule 104(a). Under that Rule, the proponent has the burden of establishing that the
pertinent admissibility requirements are met by a preponderance of the evidence.”).
II.

DAUBERT AND THE CAUSATION STANDARD

Many of the expert opinions now at issue address causation. Plaintiffs bring their
claims under the negligence and strict products liability frameworks articulated by the
Wisconsin Supreme Court in Thomas ex rel, Gramling v. Mallet, 2005 WI 129. The
negligence framework requires each plaintiff to show that he ingested white lead

3

carbonate, and that the white lead carbonate caused his injuries. Id.,¶ 161. The strict
liability framework requires each plaintiff to show that a defect in the white lead
carbonate was a cause of his injuries. Id., ¶ 162. Under Wisconsin law, negligence or
defect “caused” an injury if it was a substantial factor in producing the injury. WIS JICIVIL 1500 Cause; Schultz, 721 F.3d at 433. As is true in many toxic tort cases, the
injuries claimed by plaintiffs here are possibly—indeed likely—the product of several
combined causal factors. However, to show that WLC was a “cause” or “substantial
factor,” plaintiffs here are not required to demonstrate that lead exposure was a sole
cause of each of their injuries, so long as each shows that the WLC contributed
substantially to the development of his injuries or increased his risk of such injuries. See
Schultz, 721 F.3d at 433.
A “differential etiology” is one accepted and valid method by which experts may
render an opinion about the cause of a patient’s injury. Myers v. Illinois Central R. Co.,
629 F.3d 639, 644 (7th Cir. 2010).
[I]n a differential etiology, the doctor rules in all the potential causes
of a patient’s ailment and then by systematically ruling out causes
that would not apply to the patient, the physician arrives at what is
the likely cause of the ailment. . .. The question of whether [a
differential etiology] is reliable under Daubert is made on a case-bycase basis focused on which potential causes should be “ruled in”
and which should be “ruled out.”

Id. (internal citations omitted). In assessing whether an expert employed a reliable
method, I have discretion to consider “whether the expert has adequately accounted for
obvious alternative explanations.” Fed. R. Evid. 702 (2000) Committee Note. In some
cases, this analysis may require me to consider whether the expert has adequately
“show[n] why a particular alternative explanation is not, in the expert’s view, the sole
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cause of the [injury].” Schultz, 721 F.3d at 434 (citing Haller v. Shaw Indus., Inc., 167
F.3d 146, 156 (3d. Cir. 1999)). This makes sense in cases where it is obvious that an
alternative factor may have been solely responsible for the injury, such that the causal
factor alleged by the plaintiff could have played no role. Similarly, in cases where
obvious alternative causes may have contributed to an injury, even though they may not
entirely exclude the causal factor favored by the plaintiff, an expert may be excluded as
unreliable if he entirely fails to consider or investigate those alternatives. See Myers,
629 F.3d at 645; Brown v. Burlington Northern Santa Fe Ry. Co., 765 F.3d 765, 773774 (7th Cir. 2014).
But not all cases entail such stark alternative causal factors. It is the more
general rule while a reliable expert must consider reasonable alternative causes of an
injury, an expert need not rule out every alternative cause of an injury. Id.; Cf. Grayton
v. McCoy, 593 F.3d 610, 619 (7th Cir. 2010) (District court that excluded expert on
grounds that he did not posit possible alternative causes of plaintiff’s injuries “fail[ed] to
account for the inefficiencies of requiring an expert to list each and every possible cause
of a given outcome.”). “An expert need not testify with complete certainty about the
cause of an injury, rather he may testify that one factor could have been a contributing
factor to a given outcome.” Gayton, 593 F.3d at 619. The possibility (and the degree to
which) other factors may have contributed to plaintiffs’ injury is a subject quite
susceptible to exploration on cross-examination by opposing counsel. Id.; see also
Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1021 (7th Cir. 2000). Thus, in cases
that entail many likely-overlapping causal factors, I assess the reliability of an expert’s
differential etiology by ascertaining that the expert adequately identified the range of

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potential causes, and that he adequately investigated and considered each of these
causes in reaching his conclusions. See Schultz, 721 F.3d at 433. Such an approach is
entirely consistent with Wisconsin tort law’s “substantial factor” causation standard. Id.
Finally, the standard for reliability may be somewhat different when one party’s
expert seeks to challenge the opposing party’s expert’s differential etiology. “In attacking
the differential diagnosis performed by the plaintiff’s expert, the defendant may point to
a plausible cause of the plaintiff’s illness other than the defendant’s actions. It then
becomes necessary for the plaintiff’s expert to offer a good explanation as to why his or
her conclusion remains reliable.” Kannankeril v. Terminix Intern., Inc., 128 F. 3d 802,
808 (3d Cir. 1997); see also Westberry v. Gislaved Gummi A.B., 178 F.3d 257, 265-66
(4th Cir. 1999). Further, under Thomas, plaintiffs have the burden of proof on causation,
while defendants can rebut plaintiffs’ theory of causation by presenting alternative
causes. 2005 WI 129, ¶ 156; see also id., ¶ 163 (“[T]he pigment manufacturers here
may have ample grounds to attack and eviscerate [plaintiff’s] prima facie case, with
some of those grounds including that lead poisoning could stem from any number of
substances (since lead itself is ubiquitous) and that it is difficult to know whether
[plaintiff’s] injuries stem from lead poisoning as they are not signature injuries.”). As the
court in Daubert stated, “[v]igorous 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.” 509 U.S. at 595. Thus,
in the present cases, a defendant’s expert who opines that a factor other than WLC
exposure may have caused part or all of a plaintiff’s alleged injury will generally be
admissible even if that expert did not expressly consider or exclude lead as a cause,

6

provided that the expert used an otherwise reliable methodology to arrive at the opinion
that the alternative factor may have been a cause.
III.

ANALYSIS 1

A. Idit Trope
Idit Trope is a neuropsychologist retained by plaintiffs to offer diagnostic and
causation opinions with respect to plaintiffs’ neurocognitive injuries. Defendants have
moved to exclude her causation opinions as unreliable because, according to the
defendants, she did not perform a proper differential etiology. Defendants argue that
she failed to rule out “obvious alternative explanations” such as genetics, other
illnesses, and socioeconomic factors.”
I disagree. As discussed in Section II, above, when I consider the validity of an
experts differential etiology, I consider whether the expert “adequately accounted for”
obvious alternative explanations. Such an “adequate accounting” may require the expert
to affirmatively rule out the possibility that a certain, obvious alternative factor was the
sole cause of an injury.

But not all alternative factors require such treatment.

Depending on the specific situation, it may be enough for the expert simply to consider
alternative factors, without affirmatively excluding them. I find that, in her evaluation of
the plaintiffs, Trope did identify and exclude those obvious alternative factors that
required such treatment. Regarding Glenn Burton, Trope excluded his complicated birth
history as sole cause of his neurocognitive challenges. No. 07-C-0303, ECF No. 603-1
at 54. The other alternative causes identified by the defendants, such as heredity and

1 The three captioned cases have been consolidated for trial, and the issues raised in the
evidentiary motions addressed here overlap significantly. Though the cases do retain their individual
character, I find it most efficient to address these motions collectively. I will flag material factual
distinctions between the cases as they arise.

7

socioeconomic status, warrant consideration by the expert but not necessarily
exclusion. Through her deposition and reports, Trope explains that she considers these
factors as co-contributors to the plaintiffs’ injuries, interacting with and perhaps
exacerbating the effects of lead to yield each plaintiff’s neurological outcome. This is the
same approach by the expert whose differential etiology the Seventh Circuit found to be
reliable in Schultz: he excluded tobacco as a sole cause of the plaintiff’s cancer, while
acknowledging that tobacco and many other factors likely interacted with benzene, the
alleged toxic agent, to cause the plaintiffs cancer. 721 F. 3d at 434. I will admit Trope’s
causation opinions.
B. James Besunder
James Besunder is a pediatric critical care doctor at Akron Children’s Hospital,
with significant professional experience treating patients with elevated lead levels. He
opines that lead exposure is responsible for a ten-point drop in IQ in each of the three
plaintiffs. He bases his opinion in epidemiological studies of the relationship between
lead-exposure and IQ combined with a review of each plaintiff’s medical history.
Defendants seek to exclude his testimony in its entirety.
Defendants first argue that he is not qualified to give this testimony because he is
a treating physician and not professionally concerned with the etiology of his patients’
conditions. I find, though, that his professional training and his experience treating and
counseling patients with elevated lead levels are sufficient to qualify him to give this
testimony.
Defendants argue that Besunder’s methodology is unreliable because he uses
epidemiological studies, which explore disease patterns in large populations, to draw

8

conclusions about individual plaintiffs. However, the method of applying epidemiological
evidence to the medical records of individual patients is consistent with the practice of
doctors and sufficient to withstand Daubert. Defendants object that the epidemiological
statistics he relied on are not an adequate basis for etiological conclusions about an
individual patient’s condition. Further, the epidemiological research he relies on is
nuanced about, e.g., the age of exposure and other contributing factors, allowing
Besunder to make individualized analyses tailored to each child. Defendants concerns
about the validity of the research Besunder draws on when used for this purpose may
be addressed to the jury.
Finally, defendants argue that Besunder’s methods were unreliable because he
failed to perform a valid differential etiology. However, differential etiology was not
needed to support his opinion. His opinion, based on epidemiological evidence and the
children’s exposure histories, is that lead alone caused a ten point IQ drop, while other
factors may have caused an additional IQ drop. This is as opposed to starting with an
already-established diagnosis of a 10-point IQ drop and opining that lead is a
substantial factor relative to other factors in causing that pre-identified outcome. Further,
I note that Besunder did consider other factors and acknowledge the existence of
several co-contributing factors to plaintiffs’ overall IQ drops.
I will admit Besunder’s testimony.
C. Peter Karofsky
Peter Karofsky is a physician and former head of the Children/Teen clinic at the
UW-Madison school of medicine. He was retained by defendants to review the plaintiffs’
medical records and identify possible alternative causes of their cognitive and

9

behavioral problems. For each of the three plaintiffs, he constructed a report that
identifies many factors—medical, social, genetic, and psychological—that he opines
may have contributed to plaintiffs’ problems. Each report also includes an opinion that
early childhood lead exposure played no discernible role in the plaintiff’s neurocognitive
injuries.
Plaintiffs correctly point out that, throughout his deposition, when asked to justify
his exclusion of lead as a potential cause of the plaintiffs’ injuries, Karofsky relied
heavily on ipse dixit. Karofsky’s reports also failed to cite any published studies on early
childhood lead exposure to justify his opinion that lead played no role in plaintiff’s
injuries. The basis for Karofsky’s opinion that lead played no role in plaintiffs’ injuries is,
indeed shaky.
Nevertheless, I will admit Karofsky’s testimony for two reasons. First, as an
expert for the defense, he may challenge plaintiffs’ differential etiologies by identifying
potential alternative causes of plaintiffs’ injuries, so long as the method by which he
identifies those alternative causes is reliable. See Section II, supra. Karofsky’s reports
indicate that he identified potential alternative causes by closely reading plaintiffs
medical records and other evidence in the record and that he supported his claims with
ample citations to scholarly research. This is a reliable method. Second, each report
does include a brief section that provides a rationale for excluding or discounting lead
as a possible cause and citing to plaintiffs’ medical history. On balance, I will admit
Karofsky’s testimony to rebut plaintiffs’ differential etiologies, and will trust in the
adversary trial process to iron out the weaknesses in his testimony.

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D. William Banner
William Banner is a physician retained by defendants to review plaintiffs’ medical
records and identify potential alternative causes for each plaintiffs’ alleged cognitive
deficits. Plaintiffs object that the factors he identifies as potential causes are supported
by limited scientific studies that do not take lead exposure into consideration, and
further that he fails to consider the body of literature that identifies lead as a cause of
cognitive injury. As described in Section II above, Banner’s testimony appropriately
challenges the testimony of plaintiffs’ causation experts by raising possible alternative
causes. Plaintiffs’ objection to the literature on which he does and does not rely goes to
the weight of his testimony and is for the jury.
Banner is also offered to testify that children in the 1960s and 1970s had high
blood levels but did not have lower IQs, behavior problems, or other issues. Plaintiffs
argue that this statement is unsupported ipse dixit, and I agree. Banner’s support for the
claim that the children of the 60s and 70s suffered no harm from lead is that, though
lead levels have dropped in the population, we have not seen a correlating rise in
national IQ. Banner offers no research-based support for this claim; instead he invokes
“common wisdom.” This opinion is speculative and will be excluded for that reason.
E. David Jacobs
David Jacobs is an industrial hygienist and the former head of the Office of
Healthy Homes and Lead Hazard Control within the United States Department of
Housing and Urban development. Plaintiffs retained him to testify on several matters.
Defendants seek to exclude certain portions of his testimony.

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First, defendants seek to preclude him from offering any opinions regarding the
toxicity of lead or the health effects of childhood lead exposure. Defendants argue that
Jacobs is not qualified to give such testimony because his expertise is in the prevention
and abatement of lead hazards, not toxicology or health. Thus, they argue that if he
testifies about toxicology or health he will be in effect a “mouthpiece” for other scientists
which 7th Circuit case law doesn’t allow. Dura Automotive Systems of Indiana, Inc. v.
CTS Corp., 285 F.3d 609, 614 (7th Cir. 2002)(“A scientist, however well-credentialed he
may be, is not permitted to be the mouthpiece of a scientist in a different specialty. That
would not be responsible science.”) Indeed, at Jacobs’ deposition, plaintiffs’ counsel
appeared to concede that Dr. Jacobs would not be offered as an expert on “the longterm effects of lead exposure on plaintiffs, in other words, what their injuries, what their
damages, what the effects are.” I agree with defendants’ assessment and will exclude
Jacobs’ general opinions about lead toxicity and effects on children because his
expertise is not in this area. Jones v. Lincoln Elec. Co., 188 F.3d 709, 723 (7th Cir.
1999), cert. denied 529 U.S. 1067 (2000).
Second, defendants seek to exclude Jacobs’ opinions that lead paint was the
main cause of each plaintiff’s elevated blood lead levels. Defendants argue that Jacobs
opinions are unreliable because he did not perform a differential etiology. Defendants
argue that Jacobs bases his opinions on Milwaukee Health Department reports for
plaintiffs’ residences at the time of their lead exposure, and these reports do not explore
or identify all possible sources of lead exposure in the residences. Defendants also
object that Jacobs bases his opinion on the fact that plaintiffs’ blood lead levels dropped
following lead paint abatement at their residences, but Jacobs fails to rule out other

12

possible explanations for the declining blood lead levels such as family education on
cleaning, hygiene and nutrition. I conclude, however, that Jacobs did perform a reliable
differential etiology as defined by the Seventh Circuit case law. He considered and ruled
out water and soil as primary sources of plaintiffs’ lead exposure; thus, to my mind, he
dealt adequately with the “obvious alternative causes” contemplated by the committee
Rule 702. That he did not consider and exclude all possible factors (i.e., family hygiene
and nutrition) goes to the weight and not the admissibility of his testimony. Myers, 629
F.3d at 645. I will admit Jacobs’ specific causation testimony. I will further admit his
testimony that exposure from water and soil cannot explain plaintiffs elevated blood lead
levels.
Defendants next seek to exclude Jacobs’ opinion that “exposure to lead based
paint is not limited to the top layer of paint.” Defendants argue that both the Wisconsin
Administrative Code and HUD guidelines specify that intact lead paint in good or fair
condition is not a hazard. Defendants also argue that Jacobs had no testing done to
determine the sources of lead in any dust at the plaintiffs’ residences, and that Jacobs
did not do any investigation to support an opinion that any plaintiff in fact ingested a
paint chip containing WLC. However, the committee notes to Fed. R. Evid. 702 provide
It might also be important in some cases for an expert to
educate the factfinder about general principles without ever
attempting to apply them to the specific facts of the case. . ..
For this kind of generalized testimony, Rule 702 simply
requires that (1) the expert be qualified; (2) the testimony
address a subject matter on which the factfinder can be
assisted by the expert; (3) the testimony be reliable; and (4)
the testimony “fit” the facts of the case.

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Fed. R. Evid. 702 advisory committee's note (2000 Amends.). Jacobs’ testimony about
mechanisms of lead paint exposure falls within this category of “generalized testimony.”
And it meets all four of the Rule 702 requirements. Jacobs is qualified by his training
and his professional work in lead abatement. The testimony will help the jury in
determining whether the WLC found in paint chip samples taken from places where no
lead paint hazard had been identified can be causally linked to plaintiffs’ lead exposure.
The testimony is reliable because it is based in research and in professional experience.
(That the experts responsible for creating the HUD and Wisconsin Administrative Code
standards reached a different conclusion is a matter for cross examination.) Finally, the
testimony closely fits the facts of the case. I will admit this testimony.
Finally, defendants seek to exclude Jacobs’ opinions about population trends in
blood lead levels; racial and socioeconomic disparities in blood lead levels; societal
impacts, and so on. I have already addressed this issue at No. 07-C-0303, #1063.
Consistent with that decision, I will admit these opinions to the extent that they are
relevant to issues of duty and breach with respect to plaintiffs’ negligence claims, or
relevant to rebut defendants’ affirmative defenses.
F. Jenifer S. Heath
Jenifer S. Heath is a toxicologist and environmental consultant retained by
plaintiffs to opine about pathways of lead paint exposure in the various homes where
the plaintiffs allege they were exposed. Defendants have moved narrowly to exclude the
opinion, offered in her supplemental report with respect to each of the three plaintiffs,
that each plaintiff was poisoned by WLC (as opposed to other lead compounds) that
was present in the paint in his home.

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In her initial expert reports, Heath opined that there was a clear exposure
pathway and that each plaintiff was poisoned by lead paint in his home. Defendants do
not challenge these opinions. These initial opinions were based on evidence that the
Milwaukee Health Department had conducted risk assessments in the homes and
identified locations in the homes where there was deteriorating paint that contained
lead. The MHD inspectors did not identify the specific lead compounds in these
locations.
Several years later, plaintiffs’ expert John Halverson took paint chips from
various locations in the homes; these chips were then tested for WLC. Halverson could
not take chips from the areas where the MHD had identified lead hazards, because
those areas had already been remediated. Many of the chips that Halverson collected
from the residences revealed very high percentages of WLC. Certain of the chips
contained different lead compounds.
In Heath’s deposition testimony, she conceded that the paint history can vary
from location to location in a home, and that, indeed, there were variations in the paint
chip samples that were taken in each home. However, Heath opines that, assuming that
the Halverson samples are representative of the types of paint present more broadly in
the plaintiffs’ homes, exposure pathways to WLC can be established on the facts on the
record.
Defendants argue that Heath lacks sufficient facts and data from which to
conclude that the plaintiffs were exposed to white lead carbonate, because the only
basis for finding an exposure pathway is the MHD report, and the lead paint identified in
the MHD report is not the same as the paint sampled by Halverson and found to contain

15

WLC. Defendants also argue that Heath failed to exercise a reliable methodology in
drawing a link between exposure to lead paint and exposure to white lead carbonate;
they argue that she makes an impermissible link from “exposure to lead-based paint” to
“exposure to white lead carbonate pigment,” and provides no scientifically valid reason
for doing so.
I disagree. The principles and methods that Heath employed in forming her
opinion that plaintiffs were exposed to WLC-based paint are the same as the principles
and methods that Heath employed in forming her opinion that the plaintiffs were
exposed to lead-based paint—an opinion to which defendants did not object. The
difference here is that Heath has incorporated an additional assumption into her
analysis: the assumption that she can extrapolate from the Halverson samples to draw
conclusions about the makeup of the paint in other areas of the homes. The validity of
this assumption is uncertain, but such questions go to the weight of the testimony rather
than its admissibility and are properly resolved through rigorous cross-examination. See
Stollings v. Ryobi Technologies, Inc., 725 F. 3d 753, 767 (7th Cir. 2013). I will deny
defendants’ motion to exclude this portion of Heath’s testimony.
G. Timothy Riley
Timothy Riley is a vocational counselor, retained by plaintiffs to provide an
opinion regarding how much plaintiffs lost in terms of lifetime earnings as a result of
their alleged neurocognitive injuries. Defendants seek to exclude his testimony as
unreliable.
Riley concedes that he did not apply a single established methodology; rather he
took “bits and pieces” of various vocational rehabilitation methodologies in the literature

16

and put them together to create his approach to the question posed. Defendants argue
that his method fails to satisfy various Daubert reliability factors: it has not been peer
reviewed or independently tested, and it is not certain that another expert could
replicate the method and achieve the same results. Defendants also challenge certain
choices that Riley made with respect to the data on which he based his analysis. For
example, to assess the likelihood that plaintiffs would have gone to college absent their
cognitive injuries, he looked at college enrollment rates for high-school graduates
nationwide rather than rates for MPS graduates.
Nevertheless, I will permit Riley to testify. He did not apply an established
methodology, but the questions posed to him were unusual. He does demonstrate a
robust understanding of the various published methodologies, examines factors that
other vocational counselors would examine, identifies the various assumptions on which
he relies, and provides an account of his reasoning sufficient for a fact-finder to
determine the validity of his reasoning as compared to conclusions drawn by another
expert. He provides more than a bottom line. See McMahon v. Bunn-o-Matic Corp., 150
F.3d 651, 658 (7th Cir. 1998).
H. Vanessa Elliot Bell
Vanessa Elliot Bell is a psychiatrist retained by defendants. She opines that
plaintiffs do not have psychological disorders or deficiencies that can be attributed to
ingestion of lead during childhood. She opines that other factors like genetics, family
history, environment and socioeconomic factors can account for plaintiffs’ current
behavioral, social and emotional functioning. As a trained clinical psychologist of more

17

than twenty years’ experience, she is amply qualified to conduct a psychological
examination and to opine on a child’s psychological state and the factors affecting it.
Plaintiffs also argue that Bell’s causation opinions are flawed because she did
not rule out lead as a causal factor in plaintiff’s injuries. However, the reliability of Bell’s
opinion does not rely on her ruling out lead. As described in Section II above, Bell’s
testimony appropriately challenges the testimony of plaintiffs’ causation experts by
raising possible alternative causes. She appropriately relies on scholarly literature in
forming her opinions. Plaintiffs objections to her choices and interpretation of the
scholarly literature must be addressed through cross-examination and the testimony of
plaintiffs’ experts.
I. Elissa Benedek
Elissa Benedek is a psychiatrist retained by defendants. Plaintiffs have moved
narrowly to exclude two of her proffered opinions.
First, plaintiffs seek exclusion of her opinions that each of the plaintiffs is
“psychologically and emotionally healthy.” Plaintiffs concede that Benedek can dispute
whether plaintiffs have, variously, ADHD, Oppositional Defiant Disorder, and other
cognitive deficits (i.e., the specific neurocognitive disorders diagnosed by plaintiffs’
experts). Plaintiffs argue, however, that their psychological and emotional health is not a
fact in issue because they do not allege any problems that have a psychological
pathology. I agree with plaintiffs. Benedek may rebut plaintiffs’ experts’ diagnoses of
neurocognitive deficit, but may not make broad statements about plaintiffs’
psychological or emotional health.

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Plaintiffs also seek exclusion of Benedek’s opinions that “lots of people in [their]
30s, 40s, 50s have been exposed to a certain level of lead and they didn’t show effects”
and that “generations have been exposed to lead and didn’t show any effects.” As
plaintiffs explain, it would certainly be appropriate for Benedek to discuss the results of
studies involving cohorts of children with identified lead exposure. However, Benedek’s
language is so sweeping that it could be interpreted as including all children in the
United States, regardless of their degree of lead exposure. Such sweeping assertions
are not capable of scientific support, and indeed Benedek offers no such support. I will
narrowly exclude as unreliable this portion of Benedek’s testimony.
J. Brian Magee
Brian Magee is a toxicologist and risk assessor hired by defendants. He has a
PhD in Toxicology from MIT and thirty-five years of experience in risk assessment,
including experience consulting with government on the remediation of Superfund sites.
He used a methodology relied upon by the EPA, the “IEUBK” model, to form the opinion
that exposure pathways other than lead paint could account for the blood lead levels
seen in the plaintiffs. The IEUBK model is a mathematical model is typically used to
estimate risks from childhood lead exposures that might be seen at Superfund sites,
and to predict changes in lead exposure that might result from lead abatement efforts or
changes in the concentration of lead from in various environmental sources.
Plaintiffs seek to exclude his testimony on several grounds, but their arguments
are unavailing. First, they argue that he is not qualified to opine on these matters,
because his experience is with the remediation of large Superfund sites rather than
individual homes. I find, however, that Magee is qualified by his education alone;

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further, he explains that he frequently assessed individual homes within the Superfund
sites. Second, plaintiffs argue that the IEUBK model was not designed to precisely
predict blood lead levels for any one child, or to identify the sources of a child’s lead
exposure. But Magee does not attempt any such diagnosis. Instead he opines that the
IEUBK model can suggest plausible lead exposure pathways other than paint that can
account for the blood lead levels seen in the plaintiffs, which is all that is necessary for
defendants to challenge plaintiffs’ causation theory. Finally, plaintiffs challenge the
validity of the data to which Magee applied the model—for example, his reliance on
studies of lead concentration in various sources in properties close to plaintiffs’ homes,
and his assumptions regarding the amount of dust and water plaintiffs consumed as
children. These challenges to his underlying data and assumptions go to the weight of
his testimony and are for the jury.
Magee also opines that, while government agencies used to treat lead paint as
the major contributor of lead contamination, they now take a more nuanced view and
treat lead paint as one of several possible sources. Plaintiffs object that he cannot cite
to sources for this assertion. I find that his experience consulting with government
agencies (and, indeed, his application of an EPA-endorsed model that contemplates
many pathways of lead exposure) are sufficient basis for him to give this testimony. His
opinion is best tested through cross-examination and the testimony of plaintiffs’ expert
witnesses. I will admit Magee’s testimony in full.

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K. David Schretlen
David Schretlen is a neuropsychologist retained by defendants. He opines that
plaintiffs’ neuropsychological test results are most likely explained by factors other than
lead, including genetic endowment, home environment, socioeconomic status,
demographics and medical conditions. Plaintiffs object to two aspects of his testimony.
First, Schretlen used plaintiffs’ education and work histories to estimate the IQs
of plaintiffs’ parents so that he could then opine that the plaintiffs were performing at a
level consistent with their genetic endowment. Plaintiffs argue that he did not apply a
reliable methodology in reaching these estimates, and I agree. To defend Schretlen’s
IQ-estimation method, defendants offer only that it is “grounded in record evidence,
well-accepted tenets of psychology regarding the contribution of genetics to a child’s IQ,
and his clinical experience.” No. 07-CV-0303, ECF No. 84 at 2-3. The “well-accepted
tenets” defendants invoke may point to the relevance of Schretlen’s opinion but do
nothing to support the reliability of his method. And his reliance on “record evidence”
and “clinical experience” are inadequate to salvage a method so frankly speculative.
Plaintiffs also object that the forensic data on which Schretlen relies has never
been subject to proper peer review. This “data” is derived from 132 lead poisoning
cases in which Schretlen or his colleagues served as a defense expert. The lack of peer
review and the strong suggestion that Schretlen’s materials were developed for the
purpose of testifying in cases of this sort both weigh against admissibility.
Finally, I note that Schretlen’s report and depositions are replete with racially
charged claims which, even if admissible, are sufficiently prejudicial to warrant exclusion
under Fed. R. Evid. 403.

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I will exclude Schretlen’s testimony in its entirety.
L. John Sharpless
The defendants have designated John Sharpless, a historian, to provide the
following four opinions: (1) The historical record reflects that the public health
understanding in the City of Milwaukee of lead toxicity and hazards, during and since
the time lead paint was applied to plaintiffs residences, was similar to the public health
understanding nationally; (2) the City of Milwaukee and US Government used and
specified lead-containing paints for use in residential and public buildings accessible to
children at a time when government officials knew that lead could be hazardous if
ingested in sufficient quantities; (3) Wisconsin did not regulate or otherwise prohibit the
use of lead-containing paints on residences until the 1980s, and the City did not do so
until the 1990s; (4) the changes that took place over time in Milwaukee’s inner city
housing stock, including plaintiffs’ neighborhoods, were unforeseeable. Plaintiffs seek to
exclude his opinions on grounds of relevance and reliability.
Sharpless’ opinions are relevant to the questions of public knowledge and
manufacturer knowledge upon which will hinge the jury’s determination whether WLC
was defective on a failure to warn theory; they are also relevant to issues of contributory
negligence on the part of the City and plaintiffs’ landlords. As for plaintiffs’ reliability
arguments: they are actually objections to his conclusions. Plaintiffs argue that
Sharpless should have examined a different body of historical evidence and reached a
different outcome. These issues should be worked out through cross examination and
the contrasting testimony of plaintiffs’ expert historians. I will deny plaintiffs motions.

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A final note: I have already placed limits on testimony by plaintiffs’ experts on
grounds that such testimony might be prejudicial to the defendants, but I reserved the
right to admit the testimony if necessary to rebut defendants’ affirmative defenses. See
No. 07-C-0303, # 1063. If Sharpless testifies to his opinion (4), it may well trigger
admissibility of the “alleged disparity” evidence.
M. Laurence Steinberg
Laurence Steinberg is a professor of psychology; he specializes in “delinquency”
and in behavior and development during childhood and adolescence. He has been
designated by defendants to rebut plaintiffs’ expert testimony that lead ingestion
contributed to or increased plaintiffs’ risk of behavior issues. He opines that (1)
according to the scientific literature, lead is not an established risk factor for delinquency
or other conduct problems; (2) published studies that purport to find a statistical
association between lead and conduct problems are scientifically flawed; and (3) there
is no evidence that lead contributed to plaintiffs’ behavior issues, which were likely a
result of other factors.
Plaintiffs argue that these opinions are unreliable because Steinberg did not read
or account for a large body of scientific literature purporting to document links between
lead and conduct. Plaintiffs also argue that the studies he relies on to identify alternative
causes of plaintiffs’ behavior issues are flawed because they did not factor lead
exposure into their analysis.
I will admit Steinberg’s testimony. He does not opine that there is in fact no
relationship between lead and conduct issues, but that rather that his review of the
literature doesn’t establish that relationship and that the studies that do suggest such a

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relationship can be called into question on scientific grounds. The underlying method of
literature review by which he reached this opinion is valid. Plaintiffs objections are to his
conclusions and proper subject for cross examination or challenge by an opposing
expert with an alternative literature review.
N. Dean Webster
Dean Webster is a professor of coatings and polymeric materials designated by
defendant Sherwin Williams to offer the following opinions in all three cases: (1) white
lead carbonate is not fungible; (2) it is possible for the plaintiffs to identify the
manufacturers of the paint in their homes containing WLC; and (3) “since the early
1900s, paint formulators and consumers have known that interior and exterior
architectural paints should be used for their intended uses.”
Webster’s first two opinions are irrelevant and will be excluded as such. I have
already ruled that, under Thomas, WLC is fungible as a matter of law; I have also ruled
that the plaintiffs in these cases are not obligated to prove that product identification is
impossible. See No. 07-C-0303, #1074 and #1059. As for Webster’s third opinion:
Webster is not a trained historian, and this opinion is not of a sort that he is qualified to
give. Further, his opinion is not based on a reliable historical methodology, which
generally involves a thorough review of the pertinent historical record. See my
discussion at No. 07-C-0303, #1064, *4-15.
O. Roxane Tibbits
Roxane Tibbits is an English as a Second Language (ESL) teacher whom
defendants have designated in the Sifuentes case only to offer opinions related to
specific causation of plaintiff Cesar Sifuentes’ language deficits. Specifically, Tibbits

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opines that (1) the plaintiff’s educational development has been impaired due to many
factors, including beginning English-speaking school while still developing literacy in
Spanish, receiving little education and language support at home, poor school
attendance, and so on; (2) the early identification of plaintiff’s learning disability was
premature and invalid due to plaintiff’s language confusion at the time of the diagnosis;
and (3) plaintiff’s poor educational development is consistent with these obstacles.
Plaintiffs argue that Tibbits’ opinions should be excluded as unreliable because she did
not at all address in her report whether lead could be a cause of plaintiff’s educational
challenges. In other words, plaintiffs argue that she failed to account for an “obvious
alternative cause.”
I will not exclude Tibbits’ testimony on these grounds. As discussed in Section II
of this decision and order, a defendant’s expert may attack a plaintiff’s expert’s
differential etiology by pointing to a plausible cause of plaintiff’s injury other than the
defendant’s conduct. Westberry, 178 F.3d at 265-66. That is precisely Tibbits’ role in
this case. Further, I find that she is qualified by her professional training and experience
to give this testimony, that her testimony is based on sufficient facts (i.e., a thorough
review of plaintiff’s education records), and that she reliably applied her professional
experience to analyze plaintiff’s education records. See Fed. R. Evid. 702 advisory
committee's note (2000 Amends.).
I note, however, that some of Tibbits’ proffered testimony verges on prejudicial
(e.g., it possibly taps into prejudices relating to uneducated Mexican immigrants being
inadequate parents or about the Milwaukee Public Schools being sloppy in the provision

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of special education/English as a second language services). Defendants are warned
that I may invoke Rule 403 and limit Tibbits’ testimony if it ventures into these areas.
P. Tatiana Joseph
Tatiana Joseph is a former teacher, holds a PhD in Education, and is an
instructor in the School of Education at UW-Milwaukee. She has been designated by
plaintiff Cesar Sifuentes to rebut the testimony of Roxanne Tibbits. Defendants seek to
exclude her opinion that Tibbits’s methodology is unreliable because she failed to
consider lead as a cause of Sifuentes educational challenges. The basis of defendants’
objection is that her report relies heavily on quotations from the reports of Sifuentes’
other experts describing his lead exposure and its symptoms. Defendants argue that
she is effectively parroting the testimony of others and thus improperly using her expert
status to enhance their credibility, rather than using their testimony as the basis of an
independent analysis using her own expertise. Estate of Cape v. United States, 2013
WL 4522933 (ED Wis. Aug 27,2017) (“An expert cannot vouch for the truth of what
another expert told him.”).
Rule 703 of the Federal Rules of Evidence permits expert opinions to be based
on the reliable opinions of other experts. Though Joseph does rely heavily on other
experts’ opinions, I am satisfied that her purpose is not to vouch for the truth of these
experts opinions but rather to rebut Roxanne Tibbits’ testimony by presenting an
alternative version of how an educator qualified as an ESL expert by training and
experience might apply her professional expertise to the analysis of Sifuentes’
education records yielding a different conclusion. I will admit her testimony.

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Q. Sheila Moore
Sheila Moore is a radiologist and the former head of the radiology department at
the Children’s Hospital of Wisconsin. She has been designated by defendants to testify
in the Sifuentes case only. Her testimony addresses certain X-rays taken of Cesar
Sifuentes’ abdomen in May 2001 when he was admitted to the hospital for chelation
therapy following diagnosis of his elevated blood lead levels. The X-rays show some
white flecks in the abdomen and the radiologist who interpreted the images at the time
they were taken identified the flecks as consistent with lead paint chips.
Moore’s proffered opinion is that the flecks in the X-ray images are not lead. Her
opinion is based on the shape and density of the flecks; the fact that there are other
flecks in the images positioned outside the body, which Moore suggests is indicative of
dust on the cassette; and the fact that the flecks are not visible in another X-ray taken
shortly afterwards. Plaintiffs object that these opinions as speculative, arguing that
Moore failed to take into account that Sifuentes had elevated blood lead levels at the
time these images were taken, and that chips of lead paint had been found in his home.
They also object that her conclusion fails to take into account the conclusion of the
radiologist who interpreted the images when they were taken.
I will admit Moore’s testimony. Moore is amply qualified to give the testimony,
and it is well established that expert testimony drawing conclusions “from a set of
observations based on extensive and specialized experience” is admissible. Kumho Tire
Co. v. Carmichael, 526 U.S. 139, 156 (1999). I find that Moore’s testimony falls squarely
within this category. The fact that she did not reach the same conclusion as the
radiologists who first interpreted the images does not affect admissibility. “That two

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different experts reach opposing conclusions from the same information does not render
their opinions inadmissible.” Walker v. Soo Line R.R. Co., 208 F.3d 581, 589 (7th Cir.
2000). Ultimately, Sifuentes’ objection is not to her methods, but to the conclusions she
reaches—not a basis for exclusion under Daubert.
IV.

CONCLUSION

THEREFORE, IT IS ORDERED that defendants’ motions to exclude the
causation testimony of Idit Trope (No 07-C-0303, # 601; No. 07-C-0441, # 533; No. 10C-0075, # 469) are DENIED.
IT IS FURTHER ORDERED that defendants’ motions to exclude all opinions of
James Besunder, DO (No. 07-C-0303, # 672; No. 7-C-441, # 592; No. 10-C-75, # 524)
are DENIED.
IT IS FURTHER ORDERED that plaintiffs’ motions to exclude the testimony of
Peter Karofsky (No 07-C-0303, # 578; No. 07-C-0441, # 513; No. 10-C-0075, #442) are
DENIED.
IT IS FURTHER ORDERED that plaintiffs’ motions to exclude the testimony of
William Banner (No. 07-C-0303, # 694; No. 07-C-0441, # 620; No. 10-C-0075, # 565)
are GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that defendants’ motions to exclude certain opinions
and testimony of David Jacobs (No 07-C-0303, #632; No 07-C-0441, #572; No. 10-C0075, #511) are GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that defendants’ motions to exclude opinions of Dr.
Jenifer S. Heath (No. 07-C-0303, #660; No 07-C-0441, #607; No. 10-C-0075, #544) are
DENIED.

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IT IS FUTHER ORDERED that defendants’ motions to exclude opinions of
Timothy Riley (No. 07-C-0303, # 541, No. 07-C-0441, #477, No. 10-C-0075, # 402) are
DENIED.
IT IS FURTHER ORDERED that plaintiffs’ motions to exclude opinions and
testimony of Vanessa Elliot Bell (No. 07-C-0303, # 581; No. 07-C-0441, # 517; No. 10C-0075, #451) are DENIED.
IT IS FURTHER ORDERED that plaintiffs’ motions to exclude opinions of Elissa
Benedek (No. 07-C-0303, # 715; No. 07-C-0441, # 649; No. 10-C-0075, # 583) are
GRANTED.
IT IS FURTHER ORDERED that plaintiffs’ motions to exclude expert opinion
testimony of Dr. Brian Magee (No 07-C-0303, # 606; No. 07-C-0441, # 539; No. 10-C0075, #472) are DENIED.
IT IS FURTHER ORDERED that plaintiffs’ motions to exclude expert opinion
testimony of David Schretlen (No 07-C-303, # 590; No. 07-C-0441, # 523; No. 10-C0075, #456) are GRANTED.
IT IS FURTHER ORDERED that plaintiffs’ motions to exclude expert opinions
and testimony of John Sharpless (No. 07-C-0303, #557; No. 07-C-0441, #487; No. 10C-0075, #416) are DENIED.
IT IS FURTHER ORDERED that plaintiffs’ motions to exclude opinions of
Laurence Steinberg (07-C-0303, # 657; No. 07-C-0441, # 586, No. 10-C-0075, # 526)
are DENIED.

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IT IS FURTHER ORDERED that plaintiffs’ motions to exclude the testimony of
Dean Webster (No. 07-C-0303, #666; No. 07-C-0441, #597; No. 10-C-0075, #528) are
GRANTED.
IT IS FURTHER ORDERED that plaintiff Cesar Sifuentes’ motion to exclude the
testimony of Roxanne Tibbits (No. 10-C-0075, #409) is DENIED.
IT IS FURTHER ORDERED that defendants’ motion to exclude certain testimony
of Tatiana Joseph (No 10-C-0075, #473) is DENIED.
IT IS FURTHER ORDERED that plaintiff Cesar Sifuentes’ motion to exclude
expert opinions and testimony of Sheila Moore, M.D., F.A.C.R (No. 10-C-0075, #448) is
DENIED.

Dated in Milwaukee, Wisconsin, this 25th day of January, 2019.

_s/Lynn Adelman_________
LYNN ADELMAN
United States District Judge

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