Opinion
Case No. 6:22-cv-81-RBD-DCI
2023-12-10
Michael DAVIS, Plaintiff, v. LOCKHEED MARTIN CORPORATION, Defendant.
Timothy Michael Morgan, Eitan Goldrosen, Joshua Dustin Moore, Morgan & Morgan, P.A., Orlando, FL, Jennifer Nichole Winn, Morgan & Morgan, Saint Petersburg, FL, Josh Autry, Pro Hac Vice, Morgan & Morgan, Lexington, KY, Michael F. Ram, Pro Hac Vice, Morgan and Morgan Complex Litigation Group, San Francisco, CA, Panagiotis V. Albanis, Morgan & Morgan, PA, Fort Myers, FL, Rene F. Rocha, III, Pro Hac Vice, Morgan & Morgan Complex Litigation Group, New Orleans, LA, Shawn Kenneth Jarecki, Pro Hac Vice, Stockbridge, VT, Frank Michael Petosa, Morgan & Morgan, PA, Plantation, FL, for Plaintiff. David Barnett Weinstein, Christopher Torres, Ryan Thomas Hopper, Brian C. Porter, Christopher Ronald White, Irina Khasin, Pro Hac Vice, Raymond D. Jackson, Greenberg Traurig, P.A. Construction/Environmental Law, Tampa, FL, Francis A. Citera, Pro Hac Vice, Gretchen N. Miller, Pro Hac Vice, Greenberg Traurig, LLP, Chicago, IL, for Defendant.
Timothy Michael Morgan, Eitan Goldrosen, Joshua Dustin Moore, Morgan & Morgan, P.A., Orlando, FL, Jennifer Nichole Winn, Morgan & Morgan, Saint Petersburg, FL, Josh Autry, Pro Hac Vice, Morgan & Morgan, Lexington, KY, Michael F. Ram, Pro Hac Vice, Morgan and Morgan Complex Litigation Group, San Francisco, CA, Panagiotis V. Albanis, Morgan & Morgan, PA, Fort Myers, FL, Rene F. Rocha, III, Pro Hac Vice, Morgan & Morgan Complex Litigation Group, New Orleans, LA, Shawn Kenneth Jarecki, Pro Hac
Vice, Stockbridge, VT, Frank Michael Petosa, Morgan & Morgan, PA, Plantation, FL, for Plaintiff.
David Barnett Weinstein, Christopher Torres, Ryan Thomas Hopper, Brian C. Porter, Christopher Ronald White, Irina Khasin, Pro Hac Vice, Raymond D. Jackson, Greenberg Traurig, P.A. Construction/Environmental Law, Tampa, FL, Francis A. Citera, Pro Hac Vice, Gretchen N. Miller, Pro Hac Vice, Greenberg Traurig, LLP, Chicago, IL, for Defendant.
ORDER
ROY B. DALTON, JR., United States District Judge.
Before the Court are the parties' summary judgment and Daubert motions. (Docs. 60, 61, 63, 65, 67, 69, 71, 164, 170, 171, 178, 175, 177, 179, 181, 183-85; see Docs. 222, 223.)
BACKGROUND
In this toxic tort case, Plaintiff alleges that Defendant Lockheed Martin Corporation's weapons manufacturing facility in Orlando gave off toxic chemicals that contaminated the surrounding air, soil, and groundwater, which caused the decedent to suffer from multiple sclerosis ("MS"). (Doc. 8.)
In support of Plaintiffs resulting strict liability and negligence claims, Plaintiff has marshalled two doctors to opine on general causation—that is, whether each chemical at issue can cause the type of injury the decedent suffered. Plaintiff and Lockheed have filed cross-motions for summary judgment on the issue of general causation. (Docs. 63, 71; see Docs. 76, 80, 87, 89.) And both sides have moved to exclude each others' general causation experts. (Docs. 60, 61, 65, 67, 69; see Docs. 73, 75, 79, 82, 84.) The Court also held a hearing on general causation issues. (Doc. 147.)
Plaintiff later submitted medical opinions on specific causation—that is, whether the chemicals here actually caused the decedent's specific injury. Lockheed has moved for summary judgment on the issue of specific causation. (Doc. 185; see Docs. 197, 207.) And both sides have moved to exclude each others' specific causation experts. (Docs. 164, 170, 171, 173, 175, 177, 179, 181, 183, 184; see Docs. 192-96, 199, 200-03.)
The Court then entered an interim causation Order in which it decided: (1) that this is a McClain category two case requiring a full Daubert analysis; and (2) to take general and specific causation up on the full scientific record. (Doc. 219.) After supplemental briefing following that Order (Docs. 222, 223), these matters are ripe.
The Court Incorporates that Order in full here.
STANDARDS
Summary judgment is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Courts must view the evidence and all reasonable inferences drawn from the evidence in the light most favorable to the nonmovant. Battle v. Bd. of Regents for Ga., 468 F.3d 755, 759 (11th Cir. 2006). Then the court must decide whether there is "sufficient disagreement to require submission to a jury." Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (cleaned up).
Expert testimony may be admitted only if: (1) the expert is qualified; (2) the methodology is reliable; and (3) the testimony is helpful. Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1194 (11th
Cir. 2010); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The proponent of the expert must establish the opinion is admissible, Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010), but need not prove it is correct, Lord v. Fairway Elec. Corp., 223 F. Supp. 2d 1270, 1279 (M.D. Fla. 2002).
ANALYSIS
With McClain categorization decided, the Court turns to analyzing whether there are any genuine issues of material fact precluding summary judgment on causation. So the Court first looks to Plaintiff's two general causation experts, Drs. Kantor and Kendall. (See Doc. 80, p. 4.) Because Dr. Kendall's report relies on Dr. Kantor's, the Court begins with Dr. Kantor. (See Doc. 59-1.)
Lockheed moves to exclude Plaintiff's first general causation expert Dr. Daniel Kantor, a neurologist, for lack of reliable methodology. (Doc. 60, pp. 15-25.) The Court agrees.
Lockheed also seeks to exclude Dr. Kantor's opinions for lack of helpfulness or "fit" due to his lack of consideration of case-relevant exposure conditions, relying on In re Deepwater Horizon Belo Cases, No. 3:19CV963, 2020 WL 6689212 (N.D. Fla. Nov. 4, 2020), and Wright v. Willamette Industries, Inc., 91 F.3d 1105 (8th Cir. 1996). (Doc. 60, pp. 3-15.) But the Court has already rejected Lockheed's interpretation of those cases in the interim causation Order. (Doc. 219, p. 14 n.3; id. at 17-18 n.6.) So the Court's conclusion on Dr. Kantor is solely predicated on his unreliable methodology regardless of the fact that he did not consider dosage issues.
Dr. Kantor purports to use a weight of the evidence approach to conclude that the five substances at issue— PCE, TCE, toluene, xylenes, and styrene —could have caused the decedent's MS. (Doc. 58-1, p. 29; see Doc. 58-3, p. 36:5-14.) While a weight of the evidence approach can be reliable, as discussed in the interim causation Order, each step in the analytical process must be reliable for the testimony to be admissible. (Doc. 219, p. 12); see In re Abilify (Aripiprazole) Prods. Liab. Litig., 299 F. Supp. 3d 1291, 1311-12 (N.D. Fla. 2018); Waite v. All Acquisition Corp., 194 F. Supp. 3d 1298, 1313-16 (S.D. Fla. 2016). Here, Dr. Kantor describes his process as: (1) reviewing the opinions of public health agencies; (2) reviewing the epidemiological literature cited in those opinions and more broadly; and (3) looking at animal studies to determine a mechanism of action. (Doc. 58-1, p. 3.) Taking these pieces together, Dr. Kantor concluded that the five substances at issue "cause or contribute to" the decedent's "neurological and immunological injuries." (Id. at 8, 16, 19, 21, 23, 29-30.) The Court places the most importance on Dr. Kantor's review of the epidemiological literature, as public health agency opinions, animal studies, and biologically plausible explanations of a mechanism of action are all secondary considerations. (Doc. 219, pp. 7-12); see Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1308 (11th Cir. 2014); McClain v. Metabolife Int'l, Inc., 401 F.3d 1233, 1245-47, 1250, 1253-55 (11th Cir. 2005); Abilify, 299 F. Supp. 3d at 1306. Here, a review of the record makes clear that Dr. Kantor's approach as a whole is unsound.
Of the three primary methodologies—epidemiology, dose-response, and background risk—Dr. Kantor did neither a case-specific dose-response analysis (which the Court does not consider fatal, see supra note 2), nor a background risk analysis (Doc. 58-3, p. 99:18-21), so his review of the epidemiological literature is the only primary methodology on which he relies.
Dr. Kantor's deposition (Doc. 58-3) makes plain that his report (Doc. 58-1)
is missing virtually any hallmarks of reliability. For instance, Dr. Kantor testified that he categorized the studies he pulled based on design, confounders, biases, and other limitations—a key part of an epidemiological review—but he does not actually conduct this categorization in his report, nor does he explain the criteria he used to pull these studies in the first place. (Doc. 58-3, pp. 31:13-17, 44:12-18, 76:13-16; see Doc. 58-1.) See generally Abilify, 299 F. Supp. 3d at 1315-27 (explaining the importance of study design, confounders, and bias in determining whether a study is reliable as part of an epidemiological review). He also testified that he then used the Bradford Hill factors to analyze these studies—again, a key part of determining whether an association identified in a study shows causation—yet Bradford Hill is not even mentioned in his report, nor were the factors themselves analyzed in the report. (Doc. 58-3, pp. 32:5-19, 36:9-37:9, 71:18-23; see Doc. 58-1); In re Deepwater Horizon Belo Cases, No. 3:19CV963, 2020 WL 6689212, at *10-12 (N.D. Fla. Nov. 4, 2020), aff'd, No. 20-14544, 2022 WL 104243 (11th Cir. Jan. 11, 2022) (explaining the importance of the Bradford Hill factors in determining whether an association shows causation). Standing on their own, the report's failures to describe each step of Dr. Kantor's process cast serious doubt on the reliability of his weight of the evidence approach. See Abilify, 299 F. Supp. 3d at 1311 ("[B]ecause the 'weight of the evidence' approach involves substantial judgment on the part of the expert, it is crucial that the expert describe each step in the process by which he gathered and assessed the relevant scientific evidence."); Deepwater Horizon, 2020 WL 6689212, at *10, *12 (excluding expert in part because of conclusory Bradford Hill analysis).
Dr. Kantor's rebuttal report, even though it gives more explanation for some studies on which he relied and those he disregarded (Doc. 58-2, pp. 4-5, 8-12), does not fully resolve this problem. (See Doc. 58-3, pp. 37:10-38:2 ("In your rebuttal report, I believe you address the Bradford Hill criteria, but only for the Goldman 2012 paper; is that right?" "Correct."), 76:21-24 ("Is there anywhere in ... your rebuttal report where you explain the relative weights, if any, you assign to the different studies?" "No.").)
As the Court explained in the interim causation Order (Doc. 219, p. 10), experts relying on epidemiological studies to show general causation must identify: (1) first, an association between a particular substance and a particular disease; and (2) second, whether that association shows a cause-effect relationship. Deepwater Horizon, 2020 WL 6689212, at *10. This second step typically involves considering the Bradford Hill factors: "(1) temporal relationship; (2) strength of the association; (3) dose-response relationship; (4) replication of the findings; (5) biological plausibility; (6) consideration of alternative explanations; (7) cessation of exposure; (8) specificity of the association; and (9) consistency with other knowledge." Id.
Perhaps the gaps in the report are unsurprising given that this is the first causation report Dr. Kantor has ever written, and he professed the belief that conducting a weight of the evidence review for litigation is not subject to the same strictures as preparing a peer-reviewed publication—specifically, he felt he need not explain which studies were excluded from the analysis and for what reasons. (Doc. 58-3, pp. 14:21-25, 40:23-41:21.) In fact, the opposite is true: peer review for publication in itself is not enough for Daubert admissibility, and experts must go further to show reliability. See Allison v. McGhan Med. Corp., 184 F.3d 1300, 1313 (11th Cir. 1999).
But the indicators of unreliability do not stop there. How did Dr. Kantor use these studies that he purportedly ensured were reliably designed and showed relevant associations (conclusions the Court cannot vet because they do not appear in the report)? Well, he extrapolated "trends" from them to reach his causation opinion— but, notably, he included statistically insignificant associations in those trends. (See
Doc. 58-3, pp. 63:10-18, 70:13-22, 122:4-123:11, 125:6-15); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1314 (11th Cir. 1999) ("[C]ourts warn against leaping from an accepted scientific premise to an unsupported one."). Yet studies showing a statistically insignificant association are not relevant to a causation analysis because that means, essentially, that just as many people have the disease who were exposed to the substance as those who were not; in other words, the correlation is not really a significant association at all and may result from pure chance. See Allison, 184 F.3d at 1315 (holding that studies with statistically insignificant results are "not worth serious consideration for proving causation"). So not only did Dr. Kantor fail to demonstrably perform a Bradford Hill analysis to see if an identified association crossed the line into causation—he did not even reliably establish an association in the first place. (Doc. 58-3, p. 70:13-17 ("Do you agree that an association identified in the literature must be statistically significant in order to support a cause-and-effect relationship?" "No.")); see Deepwater Horizon, 2020 WL 6689212, at *10 (noting that "strength of the association" is part of the Bradford Hill analysis to show causation); Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1338 (11th Cir. 2010) ("Showing an association is far removed from proving causation." (cleaned up)).
And those are just the flaws in the studies Dr. Kantor reviewed that supported his conclusions; the reliability problems become more glaring when we look to studies that contradicted his conclusions. He did not list any negative studies (those showing a lack of association between substance and disease) in his report, so there is no telling what studies contradicted him or why he disregarded them. (Doc. 58-3, pp. 59:25-61:18.) He didn't just ignore statistically insignificant negative studies; rather, troublingly, he also disregarded negative studies with statistically significant results because he believed he need not acknowledge those. (See id. at 63:19-65:3, 67:4-25.) So there are apparently studies out there with significant, relevant-to-causation results showing there is no association between the substances at issue and MS, but Dr. Kantor omitted those from the Court's (and the jury's) view. See Deepwater Horizon, 2020 WL 6689212, at *10 (noting that consistency of the conclusion with other knowledge is part of the Bradford Hill analysis); cf. In re Zoloft (Sertraline Hydrochloride) Prods. Liab. Litig., 858 F.3d 787, 799-800 (3d Cir. 2017) (affirming exclusion of expert who should have "sufficiently discredited other studies that found no association or a negative association ... or sufficiently explained why he did not accord weight to those studies" (cleaned up)). This methodology— pick the studies that agree with you (even if they are not statistically significant) and ignore the ones that disagree with you (even if they are statistically significant)— is essentially the definition of an unreliable "it's true because I said so" opinion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (courts need not "admit opinion evidence that is connected to existing data only by the ipse dixit of the expert").
The Court's analysis could end there: the process problems with what Dr. Kantor included and omitted from his report require exclusion of his methodology as unreliable. But a dive into the substance of the science reveals critical weaknesses there, too. Not one study Dr. Kantor cites concludes that MS is caused by an individual substance at issue; rather, he relies solely on studies testing mixtures of solvents. (Doc. 58-3, pp. 114:5-9, 114:25-115:5.) But while the five substances at issue are indeed solvents, there are many, many types of solvents. (Id. at 28:24-29:6.)
And none of the studies he looked at had solvent mixtures with only the five substances at issue; they all had other chemicals mixed in. (Id. at 115:3-5.) Yet Dr. Kantor could not exclude the possibility that the other chemicals in the mixtures caused the disease, rather than the five substances in question. (Id. at 116:8-119:11.) So ultimately, his conclusion that these particular substances at issue cause MS is simply a wholly unproven hypothesis. See Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1199 (11th Cir. 2010) (affirming exclusion of doctor's opinion when "the literature overall [did] not provide the necessary support"). While science "is advanced by broad and wideranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so," the Court cannot permit the jury to rely on hypotheses alone. Daubert, 509 U.S. at 597, 113 S.Ct. 2786. The science behind Dr. Kantor's conclusions is just not there. See Rider v. Sandoz Pharms. Corp., 295 F.3d 1194, 1202 (11th Cir. 2002) ("The courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it." (cleaned up)).
Indeed, some studies he referenced did not even mention any of the substances in question. (Doc. 58-3, pp. 134:20-135:12, 146:8-147:23.)
Further, in at least one instance, Dr. Kantor mistakenly cited a study that was not even about MS. (Doc. 58-3, pp. 131:12-132:5.) This type of error reinforces the overall impression of unreliability of his report.
In sum, Dr. Kantor's failure to explain the steps in his weight of the evidence approach, reliance on statistically insignificant findings, unexplained omissions of studies contradicting his conclusion, and failure to tie the particular substances at issue to MS, taken together, lead the Court to conclude that his general causation methodology is too unreliable to put before a jury. See generally McClain, 401 F.3d at 1255. So Lockheed's
Even looking to Dr. Kantor's specific causation report lends no further credence to his conclusions, as that report suffers from the same flaws: unreliable citations to studies that found statistically insignificant associations and those that tested solvents generally regardless of the particular substances in question. (Doc. 157-7, p. 3; see Doc. 58-3, pp. 122:4-124:6, 134:20-135:12, 138:16-139:20, 142:20-143:24, 146:8-147:22, 148:1-150:21.)
With these fatal flaws in Dr. Kantor's review of the epidemiological literature causing his methodology as a whole to be unreliable, the Court need not focus overmuch on the other bases for his opinion, but there are problems with his secondary methodologies too. As to his reliance on public health agencies (Doc. 58-1, pp. 29-30), their conclusions are entitled to less weight given their role in recommending protective standards rather than determining causation as a predictive matter. (See Doc. 219, pp. 7-8); McClain, 401 F.3d at 1249-50; Williams v. Mosaic Fertilizer, LLC, 889 F.3d 1239, 1246-47 (11th Cir. 2018). And even when citing those agencies, he goes further than they are willing to go on causation, undermining his conclusions. (Doc. 58-3, pp. 108:1-6, 176:10-13 (acknowledging that NIEHS said it was "likely, but requiring confirmation" that solvents as a general matter contribute to MS and noting that NIEHS did not make any specific findings about the five substances at issue)); see McClain, 401 F.3d at 1247 ("The authors of the articles limit the application of their studies consistent with the principles of good science; [the expert in question] expands the application beyond good science."); cf. Huss v. Gayden, 571 F.3d 442, 459 (5th Cir. 2009) ("It is axiomatic that causation testimony is inadmissible if an expert relies upon studies or publications, the authors of which were themselves unwilling to conclude that causation had been proven."). As to Dr. Kantor's proffered biologically plausible mechanism of action (that solvents' lipophilic nature targets lipid-rich areas of the brain and reduces myelination, leading to MS symptoms) (see Doc. 58-1, pp. 3, 29), "biological plausibility, without more, cannot establish general causation" because it is simply a hypothesis waiting to be proven. Abilify, 299 F. Supp. 3d at 1308; see In re Accutane Prods. Liab., 511 F. Supp. 2d 1288, 1296 (M.D. Fla. 2007) ("While [the doctor's] biological theory may be exactly right, at this point it is merely plausible, not proven, and biological possibility is not proof of causation."). Similarly, the animal studies he cites in support of that hypothesis—showing that solvent exposure in rodents causes MS-like deterioration of brain and cellular structures —are of little value without an explanation of or some evidentiary support for how they can be extrapolated to prove similar effects in humans. (See, e.g., Doc. 58-1, pp. 6-7, 10, 20-21); Abilify, 299 F. Supp. 3d at 1310. So in toto, these secondary methodologies add little to Dr. Kantor's faulty weight of the evidence approach predicated on an unsound epidemiological review. See Abilify, 299 F. Supp. 3d at 1311 ("[A]n expert cannot merely aggregate various categories of otherwise unreliable evidence to form a reliable theory of general causation.").
motion to exclude Dr. Kantor (Doc. 60) is due to be granted.
With Dr. Kantor excluded, Dr. Kendall's report (Doc. 59-1), which primarily relies on Dr. Kantor's opinions, merits little discussion. He opines in very brief and conclusory fashion that, after reviewing Dr. Kantor's report (and other expert reports in companion cases), he also concludes that the substances in question are capable of causing the disease suffered by the decedent (and the other diseases suffered by the companion plaintiffs). (Id. at 5.) The rest of his report goes on about the likelihood of various plaintiffs in various zip codes suffering various diseases, without specific reference to this case or any discussion of how the substances here cause MS. (Id. at 9-10.) With no explanation of his methodology and a mere wholesale adoption of another expert's now-excluded opinion, Dr. Kendall's report is wholly unreliable. See Joiner, 522 U.S. at 146, 118 S.Ct. 512; Deepwater Horizon, 2020 WL 6689212, at *12; Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1113 (11th Cir. 2005). So Lockheed's motion to exclude Dr. Kendall (Doc. 61) is also due to be granted. With no reliable general causation testimony, summary judgment is due to be granted in favor of Lockheed. See Chapman, 766 F.3d at 1316; Hendrix, 609 F.3d at 1203.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED:
1. Lockheed's motions to exclude Drs. Kantor and Kendall (Docs. 60, 61) are GRANTED.
2. Lockheed's motion for summary judgment (Doc. 71) is GRANTED.
3. The Clerk is DIRECTED to enter judgment in favor of Defendant and against Plaintiff, terminate all upcoming deadlines, deny all other pending motions as moot, and close the file.
DONE AND ORDERED in Chambers in Orlando, Florida, on December 10, 2023.