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Alsadi v. Intel Corp.

United States District Court, D. Arizona

September 30, 2019

Ahmad Alsadi and Youssra Lahlou, husband and wife, Plaintiffs,
Intel Corporation, a Delaware corporation, Defendant.


          David G. Campbell, Senior United States District Judge.

         Defendant 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.

         I. Background.

         Intel 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.

         On 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 treatment.

         Plaintiffs 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.

         The case was recently transferred to the undersigned judge with the motions already pending. The Court will summarily deny the motions to strike.[1]

         II. Intel's Daubert Motions.

         A. Rule 702 and Daubert.

         Intel 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.

         Plaintiffs 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, 175-76 (1987).[2]

         B. Intel's Motion to Exclude Opinions of Dr. Anselmo Garcia.

         Dr. 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.

         Intel 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.[3]

         In his 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.

         Dr. 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.[4]

         With 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 4.[5] Again, however, Dr. Garcia does not provide a basis for these conclusions.

         Under 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 ipse dixit.

         In his 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.

         Dr. 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.

         As a 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. 26(a)(2)(C).

         Dr. 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.[6]

         Plaintiffs 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.”).

         Plaintiffs 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.

         Plaintiffs' 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.

         Plaintiffs 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 enough.”).

         Plaintiffs 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.”).

         Nor 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. 1994)).

         Dr. 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 omitted).[7]

         In 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 702(b)-(d).[8]

         C. Intel's Motion to Exclude Opinions of Dr. Charles Landers.

         Dr. 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.

         Dr. 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 13-16.[9]

         1. Causation Opinion.

         Dr. 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.

         Dr. 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.

         Dr. 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 dixit.[10]

         In his 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 he's disabled.

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.”).

         “It 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 causation.”).

         Plaintiffs 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.

         Plaintiffs 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 ...

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