Downs v. Perstorp Components, Inc.

26 F. App'x 472
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 4, 2002
DocketNo. 00-5507
StatusPublished
Cited by6 cases

This text of 26 F. App'x 472 (Downs v. Perstorp Components, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Downs v. Perstorp Components, Inc., 26 F. App'x 472 (6th Cir. 2002).

Opinion

OPINION

NORRIS, Circuit Judge.

Andrew A. Downs and Maria Downs brought suit against defendants. Perstorp Components, Inc., (“Perstorp”) and ICI Americas, Inc., (“ICI”) for injuries allegedly suffered by Andrew Downs as a result of an exposure to Rubiflex SI 30690, a chemical product manufactured by ICI. The district court granted summary judgment to defendants. We affirm.

I.

In 1995, Perstorp purchased Rubiflex, which is used in the production of foam insulation, from ICI. Another company, SurfAir, was hired to transport the Rubiflex to Perstorp’s operation in Tennessee. Downs reported that the plane chartered to ship the containers of Rubiflex was too small. JoAnn Holland, a SurfAir employee, then contacted Jayne Collyar, a Perstorp representative, about the problem. Collyar suggested repackaging the Rubiflex in smaller containers. Holland relayed this suggestion to Downs, who expressed some concern about breaking the seal on the container because he was afraid its contents might be hazardous. Holland told Downs that Rubiflex was not referenced in a book she had consulted on hazardous materials, and Downs proceeded to repackage the Rubiflex.

[474]*474During the repackaging attempt. Rubiflex splashed out of the containers and onto Downs’ arms and face. He experienced a burning sensation on his skin and contacted Holland to report the problem. After checking with Collyar, Holland assured Downs that exposure to the chemical was safe.

In December of 1995. Downs began noticing neurological symptoms and subsequently sought treatment from Dr. Kaye H. Kilburn. Dr. Kilburn diagnosed plaintiff with “chemical encephalopathy” and, after extensive testing, concluded that the cause of his condition was the exposure to Rubiflex.

In June 1996, plaintiffs instituted this diversity action. The complaint sought recovery against ICI based upon the Tennessee Product Liability Act and against Perstorp because one of its representatives negligently misrepresented the danger associated with exposure to Rubiflex.

The district court entered a discovery order requiring parties to submit expert-witness reports and disclosures required by Federal Rule of Civil Procedure 26(a)(2) by a certain date.1 When plaintiffs faked to submit the required Rule 26(a) reports for Dr. Kilburn and another identified expert, Thomas J. Callender, M.D., by June of 1998, defendants moved to compel production of the reports. Plaintiffs ultimately produced Dr. Kilburn’s report but failed to submit a report from Dr. Callender.

After defendants moved to exclude any testimony by expert witnesses for whom plaintiffs had not produced a report, the parties agreed to an order stipulating that Dr. Cakender would not offer testimony on causation. With respect to Dr. Kkburn, defendants moved to exclude his testimony on the ground that it failed to satisfy the standards for scientific testimony outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The magistrate judge conducted a Daubert hearing and granted defendants’ request to exclude Dr. Kkburn’s testimony. The district court affirmed the exclusion of Dr. Kkburn’s testimony.

At this point, defendants moved for summary judgment on the ground that plaintiffs lacked evidence of causation. In response, plaintiffs argued that they should be relieved of the restrictions placed on Dr. Cakender’s testimony by the earker agreed order so that he could testify on the issue of causation. The district court concluded that plaintiffs were bound by the agreed order, and that, without the testimony of doctors Kkburn or Cakender, plaintiffs lacked any evidence of causation. Accordingly, the court granted summary judgment to defendants.

II.

We review the district court’s decision to exclude the testimony of plaintiffs’ expert witnesses for abuse of discretion. See Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244, 248 (6th Cir.2001). We review the district court’s grant of summary judgment de novo. See Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir.1997).

A. Exclusion of Dr. Kkburn’s Testimony

Plaintiffs argue that Dr. Kkburn’s testimony meets the standard of Federal Rule of Evidence 702 for the admission of expert testimony, as wek as the criteria articulated by the Supreme Court in Daubert [475]*475for assessing the admissibility of scientific evidence under Rule 702.

1. Daubert Standard

In Daubert, the Supreme Court held that the Federal Rules of Evidence provide the standard for admitting expert scientific testimony and require that such testimony must be both relevant and reliable. Daubert, 509 U.S. at 589, 113 S.Ct. 2786. The Court explained that “in order to qualify as ‘scientific knowledge.’ an inference or assertion must be derived from the scientific method. Proposed testimony must be supported by appropriate validation — ie., ‘good grounds,’ based on what is known.” Id. at 590, 113 S.Ct. 2786. In assessing the admissibility of expert scientific testimony, the trial judge must conduct “a préliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. at 592-93, 113 S.Ct. 2786. In Daubert the Court identified several factors that may be included in this inquiry but emphasized that the inquiry is “a flexible one.” Id. at 594, 113 S.Ct. 2786. These factors include whether the theory or technique can be and has been tested, has been subject to peer review and publication, has a known potential error rate, and is generally accepted by the scientific community. Id. at 593-94,113 S.Ct. 2786.

After careful review of the magistrate judge’s opinion and the arguments made by the parties, we are convinced that the magistrate judge did not abuse his discretion in excluding Dr. Kilbum’s testimony because his conclusions were not based on valid scientific methodology.

2. Dr. Kilburn’s Methodology

The magistrate judge identified numerous “red flags” raised by Dr. Kilburn’s proposed testimony. Among those that the magistrate judge identified were: (1) Dr. Kilburn’s methodology is not accepted by the medical community; (2) he extrapolated results from unrelated chemical compounds in forming his conclusions; (3) he failed to test his hypothesis; and (4) he reached a conclusion before conducting any research.

In addition, the magistrate judge discussed problems with Dr. Kilburn’s methodology in light of testimony by defendants’ expert witnesses who described commonly accepted methods for conducting a toxicological investigation.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cutter v. Ethicon, Inc.
E.D. Kentucky, 2020
Carol Smith v. Holston Medical Group, PC
595 F. App'x 474 (Sixth Circuit, 2014)
Rolen v. Hansen Beverage Co.
193 F. App'x 468 (Sixth Circuit, 2006)
Richardson v. GlaxoSmithKline
412 F. Supp. 2d 863 (W.D. Tennessee, 2006)
Kolesar v. United Agri Products, Inc.
412 F. Supp. 2d 686 (W.D. Michigan, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
26 F. App'x 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/downs-v-perstorp-components-inc-ca6-2002.