Walsh, R. v. BASF Corporation ( 2018 )

J-S39014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICHARD THOMAS WALSH, EXECUTOR IN THE SUPERIOR COURT
OF THE ESTATE OF THOMAS J. WALSH, OF
DECEASED, PENNSYLVANIA
Appellant
v.
BASF CORPORATION, BAYER
CORPORATION D/B/A BAYER
CROPSCIENCE, L.P., AND BAYER
CROPSCIENCE HOLDING, INC., AND/OR
BAYER CROPSCIENCE, L.P. AND BAYER
CROPSCIENCE HOLDING, INC., IN
THEIR OWN RIGHT; BIOSAFE SYSTEMS,
L.L.C., CHEMTURA CORPORATION,
CLEARY CHEMICAL CORP.; DOW
AGROSCIENCES, L.L.C.; E.H. GRIFFITH,
INC.; E.I. DUPONT DENEMOURS AND
CO., INC.; G.B. BIOSCIENCES
CORPORATION; JOHN DEERE
LANDSCAPING, INC., SUCCESSOR TO
LESCO, INC.; MONSANTO COMPANY;
NUFARM AMERICAS, INC.; REGAL
CHEMICAL CO.; SCOTTS-SIERRA CROP
PROTECTION CO.; AND SYNGENTA
CROP PROTECTION, INC.,
Appellees No. 1661 WDA 2016
Appeal from the Order Entered October 14, 2016
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): G.D. No. 10-018588
BEFORE: BENDER, P.J.E., BOWES, J., and STRASSBURGER, J.*
DISSENTING MEMORANDUM BY BENDER, P.J.E.: FILED MAY 22, 2018
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S39014-17
I do not agree with the Majority that the trial court’s Frye inquiry,
derived from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), was
‘overly expansive.’ Accordingly, I respectfully dissent.
The Majority criticizes the trial court for looking behind the generally
accepted methodologies that Appellant’s experts purported to employ, and
reviewing the studies on which they relied in applying their methodologies. I
believe such screening is necessary to prevent experts from “evad[ing] a
reasoned Frye inquiry merely by making references to accepted methods in
the abstract.” Betz v. Pneumo Abex, LLC, 44 A.3d 27, 58 (Pa. 2012). As
the trial court aptly observed:
[U]nder [Appellant’s] position, assume that [Appellant’s expert,
Nachman Brautbar, M.D.] concludes that Chemical A causes AML
in humans. Also assume Dr. Brautbar supports this conclusion
solely by citing an article that concludes Chemical A is completely
safe for human exposure. Under [Appellant’s] theory, the [c]ourt
may not address the substance of the article, but must accept Dr.
Brautbar’s citation and pass the issue on to a jury.
Under [Appellant’s] approach, Dr. Brautbar may cite a study
regarding traffic patterns in New York City for the proposition that
Chemical A causes AML in humans. The [c]ourt may play no role
beyond seeing whether Dr. Brautbar cited a study to address a
Bradford Hill criterion. Again, according to [Appellant], the [c]ourt
must pass the issue on to a jury.
Supplemental Memorandum, 12/27/16, at 6.
Here, the trial court recognized that Dr. Brautbar greatly relied on
scientific literature in applying his methodologies. For instance, the trial court
discerned that “Dr. Brautbar’s opinions are not founded on the Bradford Hill
criteria as a stand-alone scientific method without citation to peer-reviewed
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research. In fact, Dr. Brautbar’s opinions rely heavily on citation to such
research.” Id. at 5.1 Thus, the trial court reviewed the articles “not for the
purpose of reaching its own conclusion regarding causation or to attack Dr.
Brautbar’s conclusions[,]” as the Majority suggests, but instead “to evaluate
whether [his] cited authorities stand for what they are cited for.” Id. at 5,6.
It found that they did not.
By way of example, to support his general causation opinion that
chromosomal aberrations can cause AML, Dr. Brautbar cited to authorities
concluding that chromosomal aberrations may be used to predict cancer risk,
generally — rather than AML, specifically. See Trial Court Opinion, 10/5/16,
at 6. The trial court thereby determined that those authorities did not justify
Dr. Brautbar’s opinion that “chromosomal changes induced by exposure to
genotoxic substances are capable of causing AML[,]” as “[n]one of the cited
authorities link chromosomal aberrations to AML[.]” Id. In a similar vein, to
establish that specific products cause AML in humans, Dr. Brautbar “cited to
____________________________________________
1 Indeed, Dr. Brautbar explained:
The generally accepted methodology for determining “general
causation” is to: (1) identify all relevant studies, (2) read and
critically evaluate all the relevant studies, (3) evaluate all the data
based upon recognized scientific factors (the Bradford Hill
viewpoints) and other factors relevant to the chemical and the
disease; (4) exercise best professional judgment in reaching a
conclusion on the issue of whether a particular chemical or class
of chemicals can cause a particular disease; and (5) explain the
factual basis and the reasoning supporting the conclusion.
Dr. Brautbar’s Report at 13.
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animal studies, test-tube studies, and studies that include significant limiting
language as to the applicability of their results to causation theories. It is not
generally acceptable scientific methodology to select portions of studies that
favor a certain outcome while ignoring direct statements against that outcome
contained within the same article.” Id. at 12-13. See also id. at 18 (finding
that a study cited by Dr. Brautbar in support of his “fingerprint” theory —
which is based on the premise that products cause damage to human DNA or
chromosomes — was misplaced as it represented that “chromosomal
aberrations may occur in the absence of chemical exposure”).
Further, although the Majority deems sufficient that “the scientific
literature, in the aggregate, supports a causal relationship between long-term
pesticide exposure and leukemia, such as AML[,]” see Majority Op. at 17, I
tend to agree with the trial court and Defendants that more particularity is
necessary. I think Appellant’s experts’ opinions required supporting research
regarding the specific products and specific disease at issue.
Therefore, while I recognize that the judiciary is not generally comprised
of scientific experts on causality, see Appellant’s Brief at 17-18, I agree with
the trial court that the studies relied on in applying a methodology should be
reviewed to confirm that they are cited appropriately. In this case, I believe
that the trial court gave adequate reasons for why it found that the cited
articles did not support Dr. Brautbar’s conclusions and, consequently, I would
not determine that it abused its discretion in precluding the testimony of
Appellant’s experts. Thus, I respectfully dissent.
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