Appeals Court remands decision to exclude expert testimony

The Appellate Division recently remanded the below matter for further consideration by the trial court. Their opinion noted that the trial court should provide a more detailed and complete factor-by-factor analysis of the Daubert factors, bearing in mind the guidance of Rubanick.

The lawsuit arises out a derailment of four freight train cars in Paulsboro on November 30, 2012, which leaked vinyl chloride into the atmosphere. The railroad was owned by Defendant Consolidated Rail Corporation a/k/a Conrail Corporation (“Conrail”). The Plaintiff, Valerie Seger, lived a short distance from the derailment site. A few days after the derailment, Plaintiff fell ill. Upon visiting the hospital, she was diagnosed with thrombosis (blood clotting) in her right foot. As a result, her right leg below the knee was amputated in December 2012. Upon investigation, the New Jersey Department of Health (NJDOH) found numerous other residents reported various symptoms similar to Plaintiff.

Plaintiff sued Conrail alleging that the vinyl chloride leakage caused her to sustain thrombosis and subsequent amputation. She retained Philip Levin, M.D. as a medical causation expert. Defendants’ expert was Michael I. Greenberg, M.D. During litigation, the Trial court scheduled a “Kemp hearing” to assess the admissibility of expert testimony. The trial judge concluded that Dr. Levin’s differential diagnosis methodology was not sufficiently reliable to present to a jury. He noted that Dr. Levin never treated a patient with vinyl chloride exposure, and the studies he relied upon were conducted with people who had occupational exposures over long periods of time. As plaintiff could not proceed without a medical causation expert, the judge entered summary judgment in favor of Conrail.

Plaintiff appealed the exclusion of Dr. Levin’s expert testimony. The Appellate Division ultimately remanded for further proceedings and more detailed findings by the trial court addressing each of the discrete factors set forth in Daubert v. Merrell Dow Pharmaceuticals. Applying the Daubert standard, the court must consider whether an expert’s reasoning or methodology underlying the testimony is scientifically valid and whether it can be applied to the facts in issue by using four factors. In this case, the brief trial court opinion did not fully analyze each of the Daubert factors. In fact, the opinion failed to analyze factor one, testability, and part of factor three, error rate. Additionally, the trial court failed to adhere to the guidance in Rubanick v. Witco Chemical Corp., which concerns the specific difficulties inherent in toxic tort litigation.