Daubert Anaysis – Expert Testimony in DuPont “C-8” MDL

Case Name: Freeman v. E. I. du Pont de Nemours & Co. (In re E. I. du Pont de Nemours & Co.), 2016 U.S. Dist. LEXIS 43337

Freeman v. E.I. du Pont de Nemours & Co. stemmed from a multidistrict litigation (“MDL”) that began in 2001. The original class action, Leach v. E. I. du Pont de Nemours & Co., concluded in 2005 when the parties finalized a settlement. In the Leach Settlement Agreement, the parties fashioned a unique procedure to determine whether the approximately 80,000 members of the class (“Leach Class”) would be permitted to file actions against Defendant E. I. du Pont de Nemours (“DuPont”). This procedure gave class members a right to sue if they incurred any of the diseases a research group believed were caused by the contamination of drinking water with ammonium perfluorooctanoate (“C-8”) that was discharged from DuPont’s Washington Works plant.

Leach Class member David Freeman suffered from testicular cancer, which he believed was specifically caused by his exposure to C-8 in his drinking water.

Expert witnesses were integral to the cases of both parties. While Mr. Freeman was not required to prove that C-8 was capable of causing testicular cancer, a stipulation of the Leach settlement, he was required to prove that C-8 specifically caused his cancer. To meet his burden, Mr. Freeman proffered the expert opinion of Robert Bahnson, M.D., F.A.C.S. Dr. Bahnson opined that Freeman’s exposure to C-8 in his drinking water was a substantial contributing factor in bringing about the development of his testicular cancer. Furthermore, the cancer in Freeman’s right testis put him at substantial risk (approximately a 15% chance) of developing cancer in the left testis. Additionally, because Mr. Freeman underwent repeated CT scanning as part of 10-year observation protocol, his risk for developing other cancers had also increased.

The Court found Dr. Bahnson’s opinion admissible under FRE 702 and the Daubert standard for the admissibility of expert witness testimony. In addition to Dr. Bahnson’s testimony, Mr. Freeman also sought to introduce testimony from his treating physician, Dr. Kelli Anne Cawley. During a deposition, Defendant questioned Dr. Cawley as to why she made no determination as to the cause of Freeman’s cancer. In response, Mr. Freeman made a Motion To Preclude Defendant from Questioning Plaintiff’s Treating Physician Kelli Anne Cawley, M.D., arguing that the scope of Dr. Cawley’s testimony was just to opine on the treatment of Mr. Freeman, whereas the causation was for Dr. Bahnson.

Mr. Freeman requested that the Court prohibit DuPont from introducing any evidence or testimony as to the opinions, or lack thereof, of Mr. Freeman’s treating physician, Kelli A. Cawley, M.D., on any cause of Mr. Freeman’s testicular cancer. DuPont responded that it was properly eliciting relevant and probative fact testimony from his Dr. Cawley, Freeman’s treating oncologist, regarding her care and treatment of him, making the following arguments:

DuPont argued that it was relevant to the determination of specific causation that Dr. Cawley failed to attribute a cause to Mr. Freeman’s testicular cancer:

1.) Dr. Cawley’s fact testimony, as Plaintiff’s treating oncologist, that she did not determine a cause of his testicular cancer is directly relevant to the jury’s consideration of specific causation. Among other things, it will clarify that his treating physician did not determine a cause, which will guard against a juror speculating or assuming that his treating physician made a determination that C8 caused his cancer.

2.) The fact that Plaintiff’s own treating physician did not recognize his testicular cancer as being atypical also is directly probative of whether it is possible to distinguish Plaintiff’s case of testicular cancer from any other case of testicular cancer that routinely occurs in patients all over the United States, and not caused by C-8. Dr. Cawley’s fact testimony that she typically does not determine a cause for her patients with testicular cancer also supports DuPont’s position that the cause of testicular cancer is unknown in the majority of patients.

The Court did not agree with DuPont’s arguments.

First, Dr. Cawley’s testimony that she did not determine a cause of his testicular cancer would only be directly relevant to the jury’s consideration of specific causation if she were qualified to make a causation determination. But Dr. Cawley unambiguously testified that she did not determine a cause of Mr. Freemen’s testicular cancer because her expertise was in treating, not diagnosing, cancer.

Second, the Court disagreed with DuPont’s statement that Dr. Cawley failed to recognize Mr. Freeman’s cancer “as being atypical.” Dr. Cawley, however, made no determination of the cause of Mr. Freeman’s cancer, again, because that is outside of the scope of her expertise.

Third, DuPont’s argument that the cause of testicular cancer is unknown in the majority of patients was not supported by Dr. Cawley’s testimony that she typically does not determine a cause for her patients with testicular cancer. Dr. Cawley’s testimony could only support DuPont’s position that the cause of testicular cancer is unknown in the majority of patients if Dr. Cawley typically does not determine a cause for her patients with testicular cancer because the cause is unknown in the majority of cases. However, Dr. Cawley does not determine the cause for testicular cancer in her patients because she is unqualified to do so, not because the cause is unknown in the majority of cases.

Fourth, the Court disagreed with DuPont’s suggestion that the jury will speculate or assume that Dr. Cawley made a determination that C-8 caused Mr. Freeman’s cancer unless DuPont clarifies with the causation testimony it attempts to elicit. By simply stating that her practice does not include diagnosing causes of cancer, the jurors will have no need to speculate or assume that she made a determination that C-8 caused or did not cause Mr. Freeman’s testicular cancer.

To make its arguments, DuPont relied on a series of cases in which the treating physician testified as to the cause of the injury or illness. However, the Court distinguished those cases from Mr. Freeman’s because in those cases, the treating physician did have expertise in diagnosing the cause of these injuries and illnesses. Although the Court agreed that DuPont may question Dr. Cawley as to her first-hand treatment and care of Mr. Freeman, DuPont could not question her on the causation of Mr. Freeman’s cancer.

Furthermore, the Court expressed concerns that DuPont implying in its questioning that Dr. Cawley could make a determination as to causation, but did not, would create an unfair prejudice to Mr. Freeman under FRE 403. Both parties already offered causation experts who were qualified to render causation opinions. Therefore, Dr. Cawley’s testimony regarding causation could confuse the jury while adding nothing of probative value, creating a substantial risk of unfair prejudice.

Based on the foregoing, the Court granted Mr. Freeman’s Motion To Preclude DuPont from Questioning Plaintiff’s Treating Physician Kelli Anne Cawley, M.D., Regarding Causation.

Mr. Freeman was eventually awarded a $5.1 million compensatory damages award by the Ohio jury due to their negligence, as well as an additional $500,000 in punitive damages due to a finding that DuPont acted with malice. The Defendant is in the process of appealing the punitive damages levied against it, arguing that the $500,000 Freeman received as punitive damages was almost entirely for emotional distress, one of the same reasons he received a compensatory damage award, and therefore Freeman essentially won a double recovery.