Chiaracane v. Port Authority Trans-Hudson Corporation

Background

Michael Chiaracane and Luis Maldonado, who were employed by Port Authority Trans-Hudson Corporation (PATH) as general maintainers, alleged that they were exposed to Tank Brite Plus (TBP), a cleaning chemical used on train cars. They alleged that PATH did not provide adequate training, protective equipment, or ventilation, and that they later experienced respiratory and other symptoms.

The plaintiffs moved under Federal Rule of Evidence 104(a) to present opinion testimony from Dr. Donald Fox, a toxicologist, on whether TBP exposure caused their injuries. Dr. Fox’s report attributed the plaintiffs’ short-term and persistent respiratory and pulmonary problems to daily TBP exposure from January through May 2016. PATH opposed the motion, arguing that Dr. Fox’s analysis lacked reliable information about the amount of TBP to which the plaintiffs were exposed and did not reliably apply the methods he identified.

Legal standard

Under Federal Rule of Evidence 702, expert testimony is admissible only if the expert is qualified, the testimony will help the factfinder, the opinion rests on sufficient facts or data, the expert used reliable principles and methods, and the expert reliably applied those methods to the case. The court described its role under Daubert v. Merrell Dow Pharmaceuticals, Inc. as making sure that expert testimony has a reliable foundation and is relevant. The court also explained that an opinion may be excluded when there is too large an analytical gap between the available data and the expert’s conclusion.

Federal Rule of Civil Procedure 26 requires an expert report to include specified information, including a list of certain prior testimony and the expert’s compensation. Rule 37 generally prevents a party that failed to provide required information from using it later unless the failure was substantially justified or harmless.

Court’s analysis

The court found that Dr. Fox was qualified to testify as a toxicologist concerning causation, and PATH did not challenge his qualifications. The court also found that his proposed testimony was relevant because causation was an element of the plaintiffs’ claims and toxicological testimony could assist jurors in evaluating causation.

The court nevertheless found Dr. Fox’s report unreliable. Dr. Fox stated that toxicological analysis required consideration of the route, duration, and concentration of exposure, as well as the chemicals’ mechanisms of action. But his report did not identify the plaintiffs’ daily exposure duration or the concentration of TBP in the air. The court noted that the plaintiffs’ written argument referred to using TBP for 60 to 90 minutes per shift, but Dr. Fox’s report did not mention or rely on that amount of time.

The report acknowledged that the actual exposure concentrations were unknown. The court found that Dr. Fox did not try to estimate the concentration, identify a scientific method for estimating it without exact measurements, or explain how the available information supported his conclusions despite the missing data. Because he did not determine or estimate the exposure duration and concentration, the court concluded that he lacked a basis to determine whether the exposure could have caused the alleged injuries.

The court also addressed Dr. Fox’s November 7, 2019 affidavit. The affidavit was submitted after discovery closed and after his expert report was disclosed. The plaintiffs did not explain why the affidavit was late, so the court found that the delay was not substantially justified. The court further found that the delay was not harmless because the affidavit introduced a new methodology involving the Bradford Hill Criteria and a new theory involving the odor threshold of sulfuric acid and its relationship to a no-observed-effect level. Those matters were not identified, explained, or applied in the original report.

The court also found that the affidavit did not cure the report’s analytical gaps. It did not identify or apply the Bradford Hill considerations in a reliable way, and the materials cited by Dr. Fox did not support all of the propositions for which he relied on them. Alternatively, even if the affidavit were considered, the court found Dr. Fox’s proposed testimony unreliable.

The opinion also noted that the plaintiffs’ report did not include a list of qualifying prior expert testimony or a compensation statement required by Rule 26(a)(2)(B). The court’s decision, however, rested on the unreliability of Dr. Fox’s opinions and the untimely affidavit.

Disposition

The court denied the plaintiffs’ motion to admit Dr. Fox’s opinion testimony at trial, Docket Entry No. 120. The Clerk of Court was directed to close Docket Entry No. 100 as moot.