Junk v. Terminix International Co.

577 F. Supp. 2d 1086, 77 Fed. R. Serv. 638, 2008 U.S. Dist. LEXIS 69916, 2008 WL 4183533
CourtDistrict Court, S.D. Iowa
DecidedSeptember 11, 2008
Docket4:05-CV-0608-JAJ
StatusPublished

This text of 577 F. Supp. 2d 1086 (Junk v. Terminix International Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Junk v. Terminix International Co., 577 F. Supp. 2d 1086, 77 Fed. R. Serv. 638, 2008 U.S. Dist. LEXIS 69916, 2008 WL 4183533 (S.D. Iowa 2008).

Opinion

ORDER

JOHN A. JARVEY, District Judge.

This matter comes before the Court pursuant to Terminix International Company Limited Partnership’s (“Terminix”) May 12, 2008, Motion to Strike Plaintiffs Expert Witnesses and The Dow Chemical Company’s and Dow AgroSciences LLC’s (collectively “Dow AgroSciences”) May 12, 2008, Motion in Limine to Exclude Expert Causation Testimony of Cynthia M. Bearer, M.D., Ph.D., and Mohamed Abou-Do-nia, Ph.D. and for Summary Judgment. [Dkt. Nos. 140, 143]. Plaintiff Rene Junk, as Parent and Next Best Friend of T.J., a minor (“Junk”), disclosed Dr. Bearer as an expert witness. For the reasons set out below, the portions of Terminix’s and Dow AgroSciences’ motions relating to Dr. Bearer are denied.

I. FACTUAL HISTORY 1

In February of 1992, Plaintiff Rene Junk became pregnant with her first child. During Rene Junk’s pregnancy, Terminix applied the pesticide Dursban L.O. (“Durs-ban”) to cracks and crevices in the interior of the Junk home to treat spider infestation. Dursban, a trademark of Dow AgroSciences, contains the organophosp-hate ehlorpyrifos. Following Tyler Junk’s birth on August 28, 1992, Terminix continued to regularly apply Dursban to the Junk home. The last application of Durs-ban to the Junk home occurred on September 15,1994.

On June 25, 1992, doctors discovered a chorioangioma, or a large tumor, in Tyler Junk’s umbilical cord. Throughout her pregnancy, Rene Junk suffered a number of symptoms, including nausea, vomiting, diarrhea, and skin rash. On August 25, 1992, three days prior to Tyler Junk’s birth, doctors discovered that he suffered from an enlarged heart and tachycardia, or a rapid heart rate. On August 28, 1992, Rene Junk gave birth to Tyler Junk. Tyler Junk suffered from tachycardia and had an enlarged heart and liver at the time of birth. The birth was approximately two months premature. Following the birth of her son, Rene Junk was diagnosed with pulmonary edema.

*1089 Throughout the first months of his life, Tyler Junk suffered from fussiness, loss of appetite, difficulty with breathing, and a runny nose. From the time that Tyler Junk was approximately six months old, Rene Junk observed that he appeared to exhibit symptoms of developmental delay. Tyler Junk was later diagnosed with cerebral palsy, and currently suffers from significant developmental delay.

On October 3, 2005, Rene Junk, on behalf of her minor son, filed a lawsuit against Dow AgroSciences, Terminix, and other defendants in Iowa state court. [Dkt. 1]. Junk alleged that her son suffered physical, neurological, and psychological injuries as a result of exposure to chlorpyrifos, which is contained in Durs-ban. On November 4, 2005, Defendants filed a notice removing the lawsuit to the United States District Court for the Southern District of Iowa. [Dkt. 1].

II. PROCEDURAL HISTORY

On August 10, 2006, this Court issued the initial scheduling order and discovery plan in this matter. [Dkt. 56]. After granting an extension, the Court set Junk’s initial expert disclosure deadline on June 18, 2007. [Dkt. 80]. Junk disclosed several expert witnesses, including Dr. Bearer. Dr. Bearer is a neonatologist who received her Ph.D. in biochemistry from Case Western Reserve University in 1977 and her M.D. from The Johns Hopkins University in 1982. [Junk App., p. 1]. She is the attending neonatologist and director of the neonatology training program at Rainbow Babies & Children’s Hospital in Cleveland, Ohio. [Junk App., p. 1]. Dr. Bearer is an associate professor in pediatrics, neurosciences, and environmental health sciences at Case Western Reserve University. [Junk App., p. 1]. She is board-certified pediatrics and neonatal/perinatal medicine. [Junk App., p. 6]. From 1998 to 2001, Dr. Bearer served on the Scientific Advisory Board, Environmental Health Subcommittee of the Environmental Protection Agency (“EPA”). [Junk App., p. 7]. Dr. Bearer was selected by the EPA to provide an independent review of a 2007 EPA summary report regarding children’s environmental health research. [Junk App., p. 625].

Dr. Bearer submitted a preliminary report dated June 15, 2007, and a supplemental report dated July 6, 2007, regarding the medical causation of Tyler Junk’s condition. [Junk App., pp. 34-41]. Dr. Bearer was deposed by Dow AgroSciences and Terminix on January 23, 2008. On May 12, 2008, Terminix and Dow AgroSci-ences filed motions to exclude the expert causation testimony of Dr. Bearer on the grounds that it did not meet the requirements of Federal Rule of Evidence 702. [Dkt. Nos. 140, 143]. Junk timely responded to these motions. [Dkt. Nos. 161, 164]. Dr. Bearer executed a declaration dated May 28, 2008, that was included in Junk’s appendix in support of Junk’s response to Dow AgroSciences’ and Termi-nix’s motions to exclude her expert causation testimony. [Junk App. pp. 958-75]. On July 2, 2008, Dow AgroSciences timely replied. [Dkt. 201], On July 7, 2008, this Court held a motion hearing in which the parties addressed Dow AgroSciences’ and Terminix’s motions regarding the exclusion of Dr. Bearer’s causation testimony. [Dkt. 203]. Counsel for Junk, Terminix, and Dow AgroSciences were present at the hearing. At the hearing, the Court reserved ruling on the motions.

III. STANDARD OF ADMISSIBILITY

Federal Rule of Evidence 702, along with the tenets of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), govern the admissibility of expert testimony in federal court. Rule 702 states:

*1090 If scientific, technical, or otherwise 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of rehable 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 must ensure that all scientific testimony is both reliable and relevant.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757 (8th Cir.2006) (citing Daubert, 509 U.S. at 580, 113 S.Ct. 2786; Fed.R.Evid. 702). “To satisfy the reliability requirement, the proponent of the expert testimony must show by a preponderance of the evidence both that the expert is qualified to render the opinion and that the methodology underlying his conclusions is scientifically valid.” Id. at 757-58 (citing Daubert, 509 U.S.

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577 F. Supp. 2d 1086, 77 Fed. R. Serv. 638, 2008 U.S. Dist. LEXIS 69916, 2008 WL 4183533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/junk-v-terminix-international-co-iasd-2008.