Holbrook v. Lykes Bros. Steamship Co.

80 F.3d 777, 1996 A.M.C. 1957, 44 Fed. R. Serv. 55, 1996 U.S. App. LEXIS 5354, 1996 WL 127849
CourtCourt of Appeals for the Third Circuit
DecidedMarch 21, 1996
Docket94-2148
StatusUnknown
Cited by28 cases

This text of 80 F.3d 777 (Holbrook v. Lykes Bros. Steamship Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holbrook v. Lykes Bros. Steamship Co., 80 F.3d 777, 1996 A.M.C. 1957, 44 Fed. R. Serv. 55, 1996 U.S. App. LEXIS 5354, 1996 WL 127849 (3d Cir. 1996).

Opinions

OPINION OF THE COURT

NYGAARD, Circuit Judge.

John Holbrook sued several shipping companies and manufacturers and suppliers of asbestos products, alleging that he developed mesothelioma from exposure to asbestos-containing products while working aboard the shipping companies’ vessels. John Holbrook died in October of 1993, and his widow, Grace Holbrook (“Holbrook”), administratrix of his estate, was substituted as plaintiff. The jury found for defendants on liability. Holbrook now challenges several evidentiary rulings by the district court, including the court’s rulings: 1) excluding testimony from the decedent’s treating physician on his diagnosis of mesothelioma; 2) excluding testimony from a pulmonologist eliminating radiation as a cause of John Holbrook’s mesothelioma; 3) allowing testimony by two defense experts on radiation exposure as a cause; and 4) redacting references to mesothelioma contained in various documents. Holbrook argues that the trial judge’s conduct was unfair and requests a new trial before a different judge. We conclude that the court’s conduct did not prevent a fair trial, but that the court committed reversible error by excluding testimony from appellant’s experts. We will reverse and remand the cause for a new trial.

I.

Holbrook served as a merchant seaman aboard the shipping companies’ vessels from 1953 to 1991. He also served aboard ship in the South Pacific for seven months in 1962 during a government nuclear testing operation called “Dominic I.” At trial, Holbrook sought to prove that John Holbrook died from mesothelioma as a result of asbestos exposure aboard the shipping vessels. The defendants contended that the exposure to asbestos, if any, was minimal and could not have caused mesothelioma, and that if John Holbrook suffered from mesothelioma, it resulted from radiation exposure during Dominic I. Both sides contested the admissibility of various experts’ testimony.

The district court excluded certain testimony by Dr. Carpenter, John Holbrook’s treating physician, and by Dr. Altschuler, a board-certified physician in internal and pulmonary medicine. The court felt that they lacked the requisite specialization to testify as to certain matters. It based its ruling, in part, on its conclusion that mesothelioma and its cause are difficult to diagnose, and that only a few types of medical specialists would qualify to give expert opinion testimony about it.

A.

The Federal Rules of Evidence embody a “strong and undeniable preference for admitting any evidence having some potential for assisting the trier of fact.” DeLuca v. Merrell Dow Pharmaceuticals, Inc., 911 F.2d 941, 956 (3d Cir.1990). “Rule 702, which governs the admissibility of expert testimony, specifically embraces this policy,” United States v. Velasquez, 64 F.3d 844, 849 (3d Cir.1995), and has a liberal policy of admissibility. In re Paoli R.R. Yard PCB Litigation (“Paoli II”), 35 F.3d 717, 741 (3d Cir. [781]*7811994). Together, Rules 702 and 104(a) instruct the district court in determining the admissibility of expert testimony. Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or 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.

Under Rule 104(a), the district court makes preliminary determinations whether the proposed expert witness is qualified and whether the testimony to be given is admissible under Rule 702. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, -, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469 (1993). This preliminary task ensures that the testimony meets a minimum threshold of reliability and relevance. Id. at-, 113 S.Ct. at 2795; Velasquez, 64 F.3d at 849.

Under Rule 702, (1) the proffered witness must be an expert; (2) the expert must testify about matters requiring scientific, technical or specialized knowledge; and (3) the expert’s testimony must assist the trier of fact. Paoli II, 35 F.3d at 741-42. Hol-brook’s first allegation of error, the court’s ruling excluding testimony by her experts, concerns the first requirement. The issue of the admissibility of the defense experts’ testimony, discussed in section III, infra, involves the other two requirements.

B. Dr. Carpenter
The first requirement of Rule 702 — that the proposed witness be an expert — has been liberally construed by this Court. Paoli II, 35 F.3d at 741. “We have held that a broad range of knowledge, skills, and training qualify an expert as such,” and have “eschewed imposing overly rigorous requirements of expertise.” Id.; see also Hammond v. International Harvester Co., 691 F.2d 646, 653 (3d Cir.1982) (permitting engineer with sales experience in automotive and agricultural equipment, who also taught high school automobile repair, to testify in products liability action involving tractors).

Velasquez, 64 F.3d at 849.

Dr. Carpenter, John Holbrook’s treating physician, specializes in internal medicine. At trial, Dr. Carpenter described the medical procedures undertaken to diagnose and treat John Holbrook. In great detail, he described the treatment, including his injection of the chemotherapeutic agent fluorouracil into his patient’s chest cavity. During Carpenter’s direct examination, when the subject turned to whether he designed the treatment for a specific malignancy, the court interrupted and stated:

He gave the treatment that he gave. This witness has not been qualified and he will not be permitted to give an opinion to a reasonable degree of medical certainty as to whether or not the cancer was mesothe-lioma.

The court prevented the treating physician from testifying: (1) that he made a diagnosis for which he treated Mr. Holbrook; (2) that his diagnosis was mesothelioma; (3) as to his preliminary impression of the decedent; (4) as to the diagnosis in the pathology report analyzing a tissue sample of Holbrook’s lungs, a report which Dr. Carpenter requested and on which he relied in treating his patient; and (5) as to the decedent’s symptoms. The court excluded this testimony because Dr. Carpenter was not an oncologist or a specialist in what the court inexplicably termed “definitive cancer diagnosis.” Referring to Dr. Carpenter’s reliance on the pathology report, the court interjected that Dr. Carpenter did not make his own diagnosis, despite the fact that Dr. Carpenter testified that he did exactly that.

Dr. Carpenter testified that he routinely relies on pathology reports to assist him in treating his patients, because pathologists have more experience examining and diagnosing tissue specimens. Specifically, Dr. Carpenter relied on the pathology report he had ordered to confirm his clinical impression and diagnosis of John Holbrook. Dr.

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80 F.3d 777, 1996 A.M.C. 1957, 44 Fed. R. Serv. 55, 1996 U.S. App. LEXIS 5354, 1996 WL 127849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holbrook-v-lykes-bros-steamship-co-ca3-1996.