United States District Court, D. Arizona
G. Campbell, Senior United States District Judge.
Intel Corporation has filed several Daubert motions,
a motion to limit the testimony of Plaintiffs' rebuttal
experts, and a motion for summary judgment. Docs. 144-47,
163, 183. The parties also have filed a combined eight
motions to strike. Docs. 154-55, 159-61, 167, 187, 200. The
motions are fully briefed, and oral argument will not aid in
the Court's decision. See Fed. R. Civ. P. 78(b).
For reasons stated below, the Court will grant the
Daubert motions in part, grant the motion to limit
the testimony of Plaintiffs' rebuttal experts, deny the
motions to strike, and deny summary judgment in part.
owns an industrial wastewater system (“IWS”)
housed in the CH-8 building of its technology development
campus in Chandler, Arizona. Technicians at Jones Lange
LaSalle (“JLL”) help operate the IWS. Plaintiff
Ahmad Alsadi worked for JLL as a HVAC technician at
Intel's Chandler campus.
February 28, 2016, an overdose of the chemical Thio-Red
caused the IWS to emit hydrogen sulfide (“H2S”)
and potentially other toxic gases. CH-8 and the nearby CN-3
building, where Alsadi was working at the time, were
evacuated. Alsadi and other JLL employees were assembled in
an area southwest of CH-8. Alsadi began experiencing a tingly
throat, cough, headache, and watery eyes. He was evaluated by
a nurse and then taken to an urgent care facility for
filed suit against Intel in September 2016. Doc. 1-2 at 5-8.
The second amended complaint asserts negligence and loss of
consortium claims. Doc. 20. Plaintiffs allege that as a
result of Alsadi's exposure to toxic gases, he has
experienced coughing, pulmonary and respiratory distress, and
other injuries requiring medical care. Id. ¶
21. Alsadi seeks damages for his alleged injuries and future
medical care. Id. ¶ 26. He claims that he has
reactive airways dysfunction syndrome (“RADS”)
which has rendered him permanently disabled. See
Docs. 161 at 5, 195 at 3.
case was recently transferred to the undersigned judge with
the motions already pending. The Court will summarily deny
the motions to strike.
Intel's Daubert Motions.
Rule 702 and Daubert.
seeks to exclude expert testimony under Federal Rule of
Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 597 (1993). Under Rule 702, an
expert may offer “scientific, technical, or other
specialized knowledge” if it “will assist the
trier of fact to understand the evidence, ” provided
the testimony rests on “sufficient facts or data”
and “reliable principles and methods, ” and
“the witness has reliably applied the principles and
methods to the facts of the case.” Fed.R.Evid.
702(a)-(d). The proponent of expert testimony has the
ultimate burden of showing, by a preponderance of the
evidence, that the proposed testimony is admissible under
Rule 702. See Cooper v. Brown, 510 F.3d 870, 942
(9th Cir. 2007); Fed.R.Evid. 104(a). The trial court acts as
a gatekeeper for expert testimony to assure that it
“both rests on a reliable foundation and is relevant to
the task at hand.” Daubert, 509 U.S. at 597.
emphasize the statement in Daubert that a district
court should conduct the admissibility analysis with a
“liberal thrust” favoring admission. Doc. 161 at
6; see Daubert, 509 U.S. at 588. The Court will
follow this guidance, but with the understanding that the
Court may admit expert opinions only if it can determine that
Plaintiffs have shown each of the Rule 702 requirements to be
satisfied by a preponderance of the evidence. See
Fed. R. Evid. 104(a); Daubert, 509 U.S. at 592 &
n.10; Bourjaily v. United States, 483 U.S. 171,
Intel's Motion to Exclude Opinions of Dr. Anselmo
Anselmo Garcia is a pulmonologist with Arizona Chest and
Sleep Medicine. He began treating Alsadi in March 2016. He
prepared a two-and-a-half page letter, dated April 23, 2017,
in which he reviews Alsadi's medical treatment and
reaches certain conclusions as to Alsadi's diagnosis, the
cause of his injuries, and his prognosis. Doc. 148-4 at 2-4.
In July 2017, Plaintiffs disclosed Dr. Garcia as an expert to
testify about: (1) Alsadi's history, examinations,
treatments, tests, findings, diagnosis, and prognosis,
including the permanent nature of his injuries; (2) the
reasonableness of the treatments and their costs; (3) the
cause of Alsadi's injuries; and (4) the opinions
expressed in the April 23 “letter report.” Docs.
148-3 at 123, 161 at 7-8.
argues that Dr. Garcia should be precluded from offering his
causation opinions because the opinions fail to meet Rule
702's requirements for admissibility. Doc. 145 at 1-3.
The Court agrees.
April 23 letter, Dr. Garcia states that exposure to H2S can
cause the following injuries and symptoms:
In low levels of exposure there can be irritation to the
eyes, nose, and throat. Exposure, even at relatively low
concentrations can cause painful dermatitis and burning of
the eyes. In the respiratory tract, exposure can lead to
immediate or delayed pulmonary edema. Pulmonary
manifestations at low concentrations [of] 50 ppm can cause
cough, shortness of breath, and bronchial or lung hemorrhage.
Long term irritation with cough and bronchospasm can be a
complication. At higher concentrations bronchitis and
pulmonary edema can develop. Due to severe dyspnea and edema
individuals can develop cyanosis and . . . severe exposure
can lead to death.
Doc. 148-4 at 3.
Garcia does not provide the basis for these general causation
opinions. He cites no medical literature or independent
research concerning the effects of H2S exposure, and he
describes no clinical experience he may have treating
patients exposed to H2S. Nor does he identify the principles
and methods he used to reach his conclusions.
respect to the specific cause of Alsadi's injuries, Dr.
Garcia states that, “as a result his exposure, [Alsadi]
has recurrent exacerbations with severe bouts of shortness of
breath and cough limiting his ability to work and complete
his activities of daily living.” Id. at 3-4.
Dr. Garcia further states that Alsadi “will continue to
suffer from recurrent reactive airway disease requiring
ongoing long term therapy and he may develop further
complications from this injury[, ] including worsening
shortness of breath, pulmonary fibrosis, persistent cough
with a chance of progressive lung injury where [o]xygen
therapy may be needed.” Id. at
Again, however, Dr. Garcia does not provide a basis for these
Rule 702, an expert must explain the basis for his
conclusions in a manner that allows the Court to determine
whether he is using reliable principles and methods and is
applying them to the facts of the case in a reliable manner.
Fed.R.Evid. 702(c)-(d). The gap between foundational facts
and the expert's conclusions cannot be bridged merely by
the mere ipse dixit - the say-so - of the expert.
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
By his own admissions, Dr. Garcia offers nothing more than
deposition, Dr. Garcia described his role in this case and
the purpose of his April 23 letter as follows:
When I was asked to do this, it was never to write an expert
report. It was simply to write my understanding of Mr.
Alsadi's current condition while I was taking care of him
and my concerns as to his overall care and where he was at.
So to say I wrote an expert report, I don't know if
I'd say I went through and tried to do all of the
literature search that I would normally do and so forth. I
simply wrote him a letter as his treating physician and what
my concerns were at the time. . . .
I was never told you are an expert witness, . . . or please
write down your expert report, because it would have been a
much more comprehensive statement than a two-and-a-half page
to whom it may concern, thank you very much kind of thing.
Doc. 148-3 at 102.
Garcia also confirmed that while he was Alsadi's treating
physician, he is not a medical or legal expert witness in
this case. Id. at 103, 106. In fact, Dr. Garcia was
“completely taken by surprise” to learn that he
had been disclosed as an expert witness given assurances from
Alsadi's counsel that he would “never need to
testify or be part of this [case].” Id. at
106. Dr. Garcia made clear that he would not be comfortable
telling a jury, from a medical or legal standpoint, that
Alsadi's injuries were caused by exposure to H2S because
he would first “have to do a lot more review, and
that's not something [he's] ever been asked to
do.” Id. at 107.
treating physician, Dr. Garcia was not required to produce an
expert report under Rule 26(a)(2)(B). See Fed. R.
Civ. P. 26(a)(2)(B). If Plaintiffs intended to call him to
testify about his treatment of Alsadi, they instead were
required to disclose only “the subject matter on which
the witness is expected to present evidence under Rule
702” and “a summary of the facts and opinions to
which the witness is expected to testify.” Fed.R.Civ.P.
Garcia was excused from the more detailed report requirement,
however, only if his testimony was limited to opinions he
formed during the course of his treatment of Alsadi. If
Plaintiffs intended to have him present opinions developed
beyond the course of treatment, then a Rule 26(a)(2)(B)
report was required for those additional opinions. See
Goodman v. Staples The Office Superstore, LLC, 644 F.3d
817 (9th Cir. 2011). That report must include a complete
statement of the testimony Dr. Garcia would provide at trial
on the additional opinions, as well as the basis and reasons
for those opinions. Fed.R.Civ.P. 26(a)(2)(B). Plaintiffs
produced no such report. The two-page letter written by Dr.
Garcia does not comply with the requirements of Rule
26(a)(2)(B), and Plaintiffs emphasize repeatedly in their
response to the Daubert motion that he is testifying
only as a treating physician. Given the requirements of Rule
26, the limited nature of Dr. Garcia's letter, and the
Ninth Circuit's decision in Goodman, Dr. Garcia
will not be permitted at trial to give opinions beyond those
formed during the course of his treatment of Alsadi. As noted
above, Dr. Garcia testified in his deposition that those
treatment-related opinions do not include the research,
analysis, or testing designed to determine the precise cause
of Alsadi's condition.
assert that Dr. Garcia's investigation of Alsadi's
medical condition and its cause has been in furtherance of
Alsadi's treatment, and that Dr. Garcia used the word
“causation” not in the
“medical/legal” sense, but as a treating doctor.
Doc. 161 at 7-8 (citing Doc. 161-2 at 10). But this does not
change the fact that any testimony Dr. Garcia might give
about the cause of Alsadi's injuries would be expert
opinion under Rule 702. His “causation opinion is an
expert opinion under [Rule] 702 because it requires training,
education, and specialized knowledge.” Alfaro v. D.
Las Vegas, Inc., No. 2:15-CV-02190-MMD-PAL, 2016 WL
4473421, at *10 (D. Nev. Aug. 24, 2016); see United
States v. Urena, 659 F.3d 903, 908 (9th Cir. 2011)
(agreeing with the Second and Eleventh Circuits that “a
physician's assessment of the cause of an injury is
expert testimony”); Gyrodata Inc. v. Atl. Inertial
Sys. Inc., No. CV-08-7897-GHK (FMOx), 2011 WL 13116732,
at *3 (C.D. Cal. Oct. 11, 2011) (treating doctor
“opinions fall within Rule 702 when they are used to
explain the causation of that condition”); Anderson
v. Hess Corp., 592 F.Supp.2d 1174, 1178 (D.N.D. 2009)
(“A treating physician's expert opinion on
causation is subject to the same standards of scientific
reliability that govern the expert opinions of physicians
hired solely for purposes of litigation.”).
further assert that the factual basis of an expert opinion
goes to the credibility of the testimony, not its
admissibility. Doc. 161 at 8. But Intel does not merely
challenge the factual basis for Dr. Garcia's opinions;
Intel also argues that the opinions are not the product of
reliable principles and methods. The requirements of Rule 702
- including that the opinion be supported by an adequate
factual basis - are conditions for admissibility, and the
Supreme Court has made clear that the “trial judge must
determine at the outset, pursuant to Rule 104(a), ”
whether the expert's testimony is admissible under Rule
702. Daubert, 509 U.S. at 592.
reliance on D'Agnese v. Novartis Pharmaceuticals
Corp., No. CV-12-00749-PHX-JAT, 2013 WL 321773 (D. Ariz.
Jan. 28, 2013), is misplaced. Doc. 161 at 8-9. No.
Daubert hearing was needed in that case because it
was unclear whether the experts actually intended to offer
causation opinions. D'Agnese, 2013 WL 321773, at
*3. The court was “concerned that a ruling based on
opinions that are not actually being offered by these
witnesses would be an opinion on an issue that is not ripe
and would be advisory.” Id. at *3 n.2.
Although Plaintiffs have withdrawn Dr. Garcia's opinion
that Alsadi is at risk for lung disease and may need a lung
transplant in the future (Doc. 161 at 5, 18), they continue
to assert that Dr. Garcia should be permitted to opine that
RADS “was a product of [Alsadi's] toxic inhalation
on Intel's campus” (id. at 5). This case
is not like D'Agnese.
argue that Dr. Garcia is a board-certified pulmonologist and,
based on his treatment of Alsadi, he is “firm in his
well-founded opinion that exposure to [H2S] caused
RADS.” Doc. 161 at 14-15. But the mere fact that Dr.
Garcia is a qualified pulmonologist who treated Alsadi does
not render his opinions on causation admissible under Rule
702 and Daubert. See Daubert v. Merrell Dow
Pharm., Inc., 43 F.3d 1311, 1319 (9th Cir. 1995)
(“We've been presented with only the experts'
qualifications, their conclusions and their assurances of
reliability. Under Daubert, that's not
assert that Dr. Garcia “did not equivocate” in
his causation opinions. Doc. 161 at 14. But a lack of
equivocation does not satisfy the requirements of Rule 702,
and Dr. Garcia made clear in his deposition that he did not
do the work necessary to state causation opinions under that
rule. Doc. 161-2 at 4. Plaintiffs contend that Dr.
Garcia's specific causation opinion is reliable because
it is based on a differential diagnosis. Doc. 161 at 16-18.
But the first step in a proper differential diagnosis
“is to compile a comprehensive list of hypotheses that
might explain the set of salient clinical findings under
consideration.” Clausen v. M/V NEW CARISSA,
339 F.3d 1049, 1057 (9th Cir. 2003). “The issue at this
point in the process is which of the competing causes are
generally capable of causing the patient's
symptoms or mortality. Expert testimony that rules in a
potential cause that is not so capable is
unreliable.” Id. at 1057-58 (emphasis in
original). In addition to the fact that Dr. Garcia does not
describe the process or basis for any differential diagnosis
in his letter, he does not first show that H2S is capable of
causing RADS. See id.; Hall v. Baxter Healthcare
Corp., 947 F.Supp. 1387, 1413 (D. Or. 1996) (“[I]t
is . . . important to recognize that a fundamental assumption
underlying [differential diagnosis] is that the final,
suspected ‘cause' . . . must actually be capable of
causing the injury.”).
have Plaintiffs shown that Dr. Garcia actually performed a
proper differential diagnosis. To perform such a diagnosis,
Dr. Garcia must identify “all of the potential
hypotheses that might explain [Alsadi's] symptoms, [and]
must then engage in a process of elimination, eliminating
hypotheses on the basis of a continuing examination of the
evidence so as to reach a conclusion as to the most likely
cause of the findings in [this] case.”
Clausen, 339 F.3d at 1058. Dr. Garcia “must
provide reasons for rejecting alternative hypotheses
‘using scientific methods and procedures' and the
elimination of those hypotheses must be founded on more than
‘subjective beliefs or unsupported
speculation.'” Id. (quoting Claar v.
Burlington N. R.R. Co., 29 F.3d 499, 502 (9th Cir.
Garcia acknowledged that Alsadi's symptoms could be
caused by various medical conditions. Doc. 161-2 at 39. In
his April 23 letter, Dr. Garcia identified a host of
conditions - allergies, acid reflux, neurogenic cough, acute
infection, and vocal cord abnormality - that potentially
could cause Alsadi's symptoms. Doc. 148-4 at 2-3. But
instead of ruling out these conditions, Dr. Garcia continued
Alsadi on therapy for them. Id. at 2; see
Goodwin v. Danek Med., Inc., No. CV-S-95-433-HDM(RJJ),
1999 WL 1117007, at *2 (D. Nev. July 8, 1999) (“There
is no evidence that Dr. Yarus undertook any differential
diagnosis to eliminate other possible causes of Goodwin's
pain. His opinion is based solely on the fact that Goodwin
had screws implanted and that there was pain. Such reasoning
has been rejected in other cases.”) (citations
summary, Plaintiffs have not shown by a preponderance of the
evidence that Dr. Garcia's causation opinions are based
on sufficient facts or data to which reliable principles and
methods have been applied reliably. The causation opinions
therefore are not admissible under Rule
Intel's Motion to Exclude Opinions of Dr. Charles
Landers is board-certified in internal, pulmonary, and
critical care medicine. He works with the Chest Medicine and
Critical Care Medical Group. He has privileges at Sharp
Memorial Hospital in San Diego. Doc. 148-4 at 14.
Landers prepared a rebuttal report dated February 22, 2008.
Id. at 13-41. He opines in part that Alsadi had a
significant exposure to H2S and other toxic gases at the
Intel campus and developed RADS. Id. at 35-36. Intel
argues that Dr. Landers's causation opinion is
inadmissible under Rule 702 because it based not on reliable
scientific principles and methods, but rather on the timing
of the exposure and onset of symptoms. Doc. 146 at 3, 6-13.
Intel further argues that Dr. Landers's diagnosis of RADS
is not based on a reliable methodology. Id. at
Landers reviewed Alsadi's medical records, reports of
Intel's experts and independent medical evaluators,
Intel's emergency response plans, a material safety sheet
for Thio-Red, and certain discovery materials. Doc. 148-4 at
13-14. He provides a thorough account of Alsadi's medical
history in his rebuttal report. Id. at 14-35. He
then offers these opinions (id. at 35):
• Alsadi had a significant exposure to toxic industrial
gases on 2/28/16. The information is compatible with Thio
Red, H2S and possibly other toxic gases.
• Alsadi develop[ed] RADS thereafter and continues to
suffer from [shortness of breath], cough, wheezing and
external limitations, despite ongoing therapy.
Landers concludes that, as a result of his exposure to toxic
gases at the Intel campus, Alsadi “has experienced
extensive resulting changes including RADS[.]”
Id. at 36.
Landers does not explain the basis for this conclusion.
Although his Rule 26(a)(2)(B) report includes a lengthy
account of Alsadi's medical history and symptoms, Dr.
Landers does not bridge the gap between these foundational
facts and his causation opinion with any reliable principle
or method. His opinion that Alsadi's exposure to toxic
gases caused RADS is nothing more than unvarnished ipse
deposition, Dr. Landers relied on the temporal proximity
between the exposure and Alsadi's symptoms, claiming that
it is not a mere coincidence that Alsadi was exposed to toxic
gases and thereafter developed RADS:
I think that RADS from toxic industrial gas exposure is the
best fit for the data that we have about Mr. Alsadi from day
one to now. I think the information is compatible with
Thio-Red[, ] hydrogen sulfite[, ] and other toxic gases,
unknown amount, unknown duration, unknown mix of multiple
gases. I think . . . the information that we have is
that's the best fit. I don't think it's a
coincidence. I think he got exposed to gases, and now
Id. at 57; see also Id. at 55 (“This
is not a coincidence that suddenly on the 28th of February
[Alsadi] . . . got short of breath[.] This is not a
coincidence that he developed asthma out of the blue in the
setting of this. This is the cause.”).
is well settled that a causation opinion based solely on a
temporal relationship is not derived from the scientific
method and is therefore insufficient to satisfy the
requirements of [Rule] 702.” Cartwright v. Home
Depot U.S.A., Inc., 936 F.Supp. 900, 906 (M.D. Fla.
1996) (quoting Federal Judicial Center's Reference Manual
on Scientific Evidence); see Daubert, 43 F.3d at
1319 (excluding opinion that Bendectin caused the
plaintiffs' birth defects where the expert relied on
“the timing of their mothers' ingestion of the
drug”); Moore v. Ashland Chem. Inc., 151 F.3d
269, 279 (5th Cir. 1998) (the district court was
“correct in viewing with skepticism [the expert's]
reliance on the temporal proximity between the exposure and
injury”); Porter v. Whitehall Labs., Inc., 9
F.3d 607, 611 (7th Cir. 1993) (causation opinions properly
excluded where they were based “merely on the temporal
relationship between the ingestion of ibuprofen and the
injury”); Lassalle v. McNeilus Truck & Mfg.,
Inc., No. 16-CV-00766-WHO, 2017 WL 3115141, at *5 (N.D.
Cal. July 21, 2017) (excluding causation opinion where the
“temporal connection between the events made up [the
expert's] mind that a purported explosion event caused
the decedent's eventual brain death”); Prall v.
Ford Motor Co., No. 2:14-CV-001313-MMD-GWF, 2017 WL
361545, at *4 (D. Nev. Jan. 24, 2017) (“[The expert]
concludes that the existence of one event after the existence
of another is sufficient to prove the first event caused the
second. This is a logical fallacy - post hoc ergo propter
hoc. While the existence of the [throttle] problem is
necessary to conclude that it was the cause of the accident,
it is not, in itself, sufficient to establish
note that testimony about a doctor's own clinical
experiences is not mere speculation. Doc. 160 at 9. But Dr.
Landers does not rely on his own clinical experience in
forming his causation opinion. He has never treated a patient
exposed to H2S. See Doc. 148-4 at 50-53.
assert that Dr. Landers's causation opinion is grounded
in the “sound application of the principles and
methodology of his discipline.” Doc. 160 at 8. But no
specific principles are identified. Id. Plaintiffs
do claim that Dr. Landers performed a differential diagnosis
to determine causation by “consider[ing] numerous
variables, including the details of the exposure, the
temporal relationship between exposure and symptom onset, the
symptoms themselves, the correlation with those typically
associated with RADS, the lack of preexisting conditions, and
the lack of alternative explanations.” Doc. 160 at 9.
But Plaintiffs cite no portion of Dr. Landers's report to
support this assertion, nor do they explain how Dr.
Landers's purported consideration of the numerous
variables led him to conclude that the exposure event caused
RADS. Dr. Landers himself does not claim to have ...