Jernee v. Kennametal, Inc. ( 2015 )

 2001 from complications related to ALL. Jernee filed a complaint in 2003,
arguing that the actions of multiple parties were a substantial factor in
causing the decedents' ALL. Eventually, Jernee narrowed the claim to
argue that emissions of tungsten carbide with cobalt from respondent
Kennametal caused what became known as the Fallon Leukemia Cluster
and specifically caused Adam's and Stephanie's ALL. In 2012, following
extensive discovery, the district court issued an order granting
Kennametal's motion in limine to exclude the testimony of Dr. Pike,
Jernee's expert on specific causation, on the grounds that his opinion was
not reliable. Because Jernee lacked an expert to prove specific causation,
the district court granted Kennametal's motion for summary judgment in
the same order. The district court also denied Jernee's motion to strike
Kennametal's answer. This motion alleged widespread litigation
misconduct.
On appeal, Jernee argues that (1) the district court abused its
discretion by excluding Dr. Pike's testimony on specific causation; (2) even
if excluding Dr. Pike's testimony was not an abuse of discretion, the
district court erred by granting summary judgment; and (3) the district
court abused its discretion in denying Jernee's motion to strike
Kennametal's answer.
The district court did not abuse its discretion by excluding testimony from
Dr. Pike on specific causation
In toxic tort litigation, a plaintiff must prove both general and
specific causation. Holcomb v. Ga. Pac., LLC, 128 Nev. , n.5, 289
P.3d 188, 192 n.5 (2012). General causation requires proof that the
substance in question is capable of causing the alleged injury. Id. Specific
causation requires proof that the plaintiff was actually exposed to the
substance in question and that exposure was a substantial factor in
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causing the plaintiffs injury. Id. Causation in toxic tort litigation is
generally proven by expert testimony. See Dow Chem. Co. v. Mahlum, 114
Nev. 1468, 1482, 970 P.2d 98, 107-08 (1998).
A witness may testify as an expert if, in addition to other
requirements, the expert's opinion is the product of a reliable
methodology. Hallmark v. Eldridge, 124 Nev. 492, 500, 189 P.3d 646, 651
(2008). To help determine whether an opinion is reliable, "a district court
should consider whether the opinion is (1) within a recognized field of
expertise; (2) testable and has been tested; (3) published and subjected to
peer review; (4) generally accepted in the scientific community," which is
not always determinative; "and (5) based more on particularized facts
rather than assumption, conjecture, or generalization." Id. at 500-01, 189
P.3d at 651-52. "[These factors are not exhaustive, may be accorded
varying weights, and may not apply equally in every case." Id. at 502, 189
P.3d at 652. 2
Jernee argues that the district court abused its discretion by
concluding that Dr. Pike's testimony on specific causation was not based
on reliable methods. See id. at 498, 189 P.3d at 650. We disagree because
Dr. Pike's report fails to set forth a reliable methodology.
Hallmark Factor 1: Recognized Field of Expertise
The district court found that Dr. Pike had no specialization in
childhood leukemia, any form of cancer, or the causes thereof. Indeed, Dr.
Pike had never before diagnosed the cause of a patient's leukemia. These
2 Jernee
argues that the district court erred because it did not apply
the Hallmark factors to Kennametal's motion in limine. This argument is
without merit as the district court explicitly discusses Hallmark and
weighed several Hallmark factors.
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findings are supported by substantial evidence; therefore, the first factor
indicates Dr. Pike's opinion was not in the field of his actual expertise.
Hallmark Factors 2 and 3: Testable and Has Been
Tested and Published and Subjected to Peer Review
The district court did not appear to address whether Dr. Pike's
opinion was tested and testable, but it did find that his opinion was not
subjected to peer review. Again, this finding is supported by substantial
evidence. Therefore, the second Hallmark factor was not considered and
the third weighs in favor of exclusion.
Hallmark Factor 4: Generally Accepted in the Scientific
Community
The district court also found that Dr. Pike's opinion was not
supported by the scientific community To ensure reliability, an expert
must employ "in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field." Kumho Tire
Co. v. Carmichael, 526 U.S 137, 152 (1999). Indeed, district courts must
consider whether the expert's method is "generally accepted in the
scientific community" Hallmark, 124 Nev. at 500, 189 P.3d at 651-52
(emphasis added). Therefore, applying a lower "litigation standard" that
lacks an accepted scientific or medical basis indicates a lack of reliability.
See Kumho Tire Co., 526 U.S. at 152; Hallmark, 124 Nev. at 500-502, 189
P.3d at 651-52.
Dr. Pike's analysis cited three epidemiological studies on
tungsten carbide and lung cancer that mentioned a statistically
insignificant relationship between tungsten carbide and leukemia. One
found an increased mortality from leukemia among workers exposed to
tungsten carbide, but the increase was not statistically significant at a 95
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percent confidence leve1. 3 Dr. Pike, however, determined that when
applying a 70 percent confidence level, the results are statistically
significant. According to Dr. Pike, this is an acceptable standard because
a civil standard of proof is one of "more likely than not." The district court
properly concluded that applying such a low confidence level was not
supported by the scientific community. 4
Hallmark Factor 5: Based More on Particularized Facts
Rather Than Assumption
3 "Scientists use the concept of a 'confidence interval' as the means by
which an epidemiologist can express confidence in a specific finding of
relevant risk." Berry v. CSX Transp., Inc., 709 So. 2d 552, 559 (Fla. Dist.
Ct. App. 1998). "A confidence interval is a range of values, calculated from
the results of a study, within which the true value is likely to fall." Cook v.
Rockwell Int'l Corp., 580 F. Supp. 2d 1071, 1100-01 (D. Cob. 2006).
"Regardless of statistical significance, one can never exclude the
possibility that a particular association occurred by chance. Even using a
95% confidence interval, there is a 5% likelihood that any association
found is not a true association, but is rather a chance occurrence." Wade-
Greaux v. Whitehall Labs., Inc., 874 F. Supp. 1441, 1452 (D.V.I. 1994)
affd, 46 F.3d 1120 (3d Cir. 1994).
4 "Statisticians typically calculate margin of error using a 95 percent
confidence interval." Duran v. U.S. Bank Nat. Assn., 325 P.3d 916, 943
(Cal. 2014). Jernee relies on two cases, Mahlum, 114 Nev. at 1484-85, 970
P.2d at 109, and Williams v. Eighth Judicial Dist. Court, 127 Nev. ,
, 262 P.3d 360, 368 (2011), to support Dr. Pike's assertion that reliance
on a lower confidence level is acceptable. First, Mahlum is unhelpful
because the question in the• present case is not whether the scientific
community has reached a consensus that tungsten carbide causes
leukemia, but whether Dr. Pike's conclusion on specific causation was the
result of a reliable methodology. See 114 Nev. at 1484-85, 970 P.2d at 109.
Second, Williams undermines Jernee's argument because it requires
medical experts' opinions to be held to a "reasonable degree of medical
probability" so that the expert has actually made a medical judgment on
which a fact-finder can rely. See 127 Nev. at , 262 P.3d at 367-68.
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Finally, the district court found that Dr. Pike's opinion was
based on assumptions and speculation because Dr. Pike assumed Adam
and Stephanie were exposed to a dose of tungsten carbide with cobalt
sufficient to cause ALL, and Dr. Pike's differential diagnosis failed to rule
out other potential causes for Adam's and Stephanie's ALL,
First, the district court did not abuse its discretion in
concluding that "Dr. Pike did not have sufficient evidence of exposure, and
instead just speculated that Adam Jernee and Stephanie Sands were
exposed based on their presence in Fallon."
Although we have upheld the admission of circumstantial
evidence to prove that certain food caused food poisoning, "to be sufficient
for that purpose, the circumstantial evidence must exclude other extrinsic
causes of the accident." Wilson v. Circus Circus Hotels, Inc., 101 Nev. 751,
754, 710 P.2d 77, 79 (1985) (quoting Vuletich v. Alivotvodic, 392 N.E.2d
663, 667 (Ill. App. Ct. 1979)). Dr. Pike explains that one study of the
Cluster showed an elevated concentration of tungsten in the urine samples
of Fallon residents, and other studies showed increased presence of
tungsten emissions during the relevant time. Dr. Pike infers that
Stephanie and Adam were exposed to tungsten carbide with cobalt based
on these environmental factors. 5 However, these studies only measured
tungsten and cobalt, not tungsten carbide or tungsten carbide with cobalt.
Furthermore, the urine study concluded that tungsten naturally occurred
5 Jernee also cites the testimony of Stephanie's father that Stephanie
would enter the Kennametal's Fallon plant to retrieve balls and would
return with sooty hands. Dr. Pike's report ruled out transdermal exposure
as a viable exposure pathway, but opined that hand-to-mouth contact
could lead to exposure through ingestion. There is no similar evidence of
direct exposure for Adam, however.
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in the test subjects' urine and in the groundwater. Also, the Nevada
Department of Health generated extensive data on the exposure history of
affected families, including the Jernees, but such data is not mentioned in
Dr. Pike's report.
An inference of environmental exposure appears reasonable,
and requiring Dr. Pike to describe a specific toxic dose would be
unreasonable burden. Still, Dr. Pike was unable to testify as to (1)
whether Adam and Stephanie were in fact exposed to tungsten carbide or
tungsten carbide with cobalt or (2) whether the tungsten carbide or
tungsten carbide with cobalt emissions in Fallon were sufficient to cause
ALL. Therefore, Dr. Pike's opinion on specific causation was based on
speculation about Adam's and Stephanie's exposure, and the district court
did not abuse its discretion in this regard.
Second, we conclude that the district court did not abuse its
discretion in finding that Dr. Pike failed to rule out other potential causes
for Adam's and Stephanie's leukemia. A number of courts have held that
an expert's testimony on causation lacks reliability where the expert fails
to conduct a differential diagnosis. See Hendrix v. Even/b Co., Inc., 609
F.3d 1183, 1195 (11th Cir. 2010); In re Paoli R.R. Yard PCB Litig., 35 F.3d
717, 758-59 (3d Cir. 1994).
According to Jernee, however, Dr. Pike did perform a
differential diagnosis because the CDC ruled out a number of other causes
for the Cluster, neither Adam's nor Stephanie's family histories showed a
history of childhood cancer, and neither Adam's nor Stephanie's medical
records revealed prior toxic exposures. Dr. Pike, however, did not rule out
toxic exposures during Adam's stay in Mexico or exposure to toxic fumes
from his father's at-home car painting business. Similarly, Dr. Pike did
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not rule out exposures during Stephanie's time in Florida or Pennsylvania.
Although Jernee argues that Kennametal did not present any evidence of
exposures outside Fallon, the expert's proponent bears the burden of
showing that the expert's testimony is reliable. State, Dep't of Motor
Vehicles v. Bremer, 113 Nev. 805, 808-09, 942 P.2d 145, 147-48 (1997). As
such, the district court did not abuse its discretion here because Dr. Pike.
failed to adequately rule out other causes of Adam's and Stephanie's ALL.
Other indicia of unreliability and reliability
The Hallmark factors are not exhaustive and are designed to
help determine whether an expert's opinion is relevant and based on a
reliable methodology such that the opinion will actually assist a fact-
finder. Hallmark, 124 Nev. at 500, 502, 189 P.3d at 651-52. Therefore
courts should consider additional factors that tend to indicate that an
expert's opinion is reliable or unreliable.
Dr. Pike's opinion was formed in preparation for litigation.
Although a litigation-based opinion is not unreliable per se, the fact that it
arose from litigation is a factor that, in concert with the other factors,
tends to diminish an expert's reliability. Cabrera v. Cordis Corp., 134 F.3d
1418, 1421 (9th Cir. 1998). Therefore, the district court did not abuse its
discretion in determining that Dr. Pike's opinion was less reliable because
it was formed in the context of ongoing litigation.
Additionally, Jernee argues that the district court failed to
consider other indicia of reliability in excluding Dr. Pike's testimony.
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Specifically, Jernee argues that Dr. Pike's specific causation opinion was
based on extensive independent research and discussion.°
First, Dr. Pike relied on statistical probabilities and
epidemiological studies, but these two items do not support specific
causation. The probabilities and epidemiological studies may suggest a
common cause for many of the leukemia cases in the Cluster, but they do
not necessarily show that Adam's and Stephanie's ALL were caused by the
same exposure or that the cause was exposure to emissions from
Kennametal's plants.
Dr. Pike also cited mechanistic studies involving combinations
of substances and diseases other than leukemia and tungsten carbide, but
no studies discussing whether tungsten carbide causes leukemia. There is
no evidence showing how these studies support the conclusion that
tungsten carbide causes leukemia, thus these additional studies do not
appear to support the reliability of Dr. Pike's opinion. See Glastetter v.
Novartis Pharm. Corp., 252 F.3d 986, 990 (8th Cir. 2001) ("Even minor
deviations in molecular structure can radically change a particular
substance's properties and propensities.").
Next, the temporal relationship between Kennametal's
emissions and the Cluster is more tenuous than Jernee suggests.
Kennametal began manufacturing tungsten carbide at its Fallon plant in
1961, meaning that, according to Dr. Pike, Kennametal was emitting
°Jernee also argues that the district court disregarded the fact that Dr.
Pike relied on another expert's report in reaching his opinion. However,
the district court also excluded that other expert's testimony on specific
causation (an order from which Jernee does not appeal), so that report can
add little reliability to Dr. Pike's opinion on specific causation.
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tungsten carbide for 35 years before the Cluster surfaced in 1997. Jernee
argues that the Cluster was caused by an increase in emissions from
Kennametal between 1995 and 1997. However, Stephanie stopped living
in Fallon in 1995, before the increase in emissions. Similarly, Adam
moved to Fallon in 1999 and was diagnosed with ALL in May 2000.
Finally, Jernee argues that the district court failed to consider
decisions from other jurisdictions that support allowing Dr. Pike to testify
on specific causation. Specifically, Jernee cited Rubanick v. Witco Chem.
Corp., 593 A.2d 733 (N.J. 1991), and Donaldson v. Cent. Ill. Pub. Serv. Co.,
767 N.E.2d 314 (Ill. 2002) (abrogated on other grounds by In re
Commitment of Simons, 821 N.E.2d 1184, 1189 (Ill. 2004)). These cases
apply the Frye standard for expert admissibility, which we have expressly
rejected. Santillanes v. State, 104 Nev. 699, 704 n.3, 765 P.2d 1147, 1150
n.3 (1988). Moreover, these cases are factually distinguishable. Unlike
Rubanick, there is no large body of evidence showing that tungsten
carbide with cobalt causes ALL, and exposure in this case is much less
certain. See 593 A.2d at 748. Likewise, the evidence supporting specific
causation in this case is inferior to the evidence presented in Donaldson.7
767 N.E.2d at 323-30.
7 1n Donaldson, admitted expert opinions were based on studies on
neuroblastoma, scientific risk factors for nervous system cancers, animal
studies regarding nervous system cancer, the statistical odds of that
cluster being caused by chance, circumstantial evidence of the children's
exposure to the defendant's emissions, the temporal relationship between
the release of emissions from the site to the onset of the neuroblastoma,
the fact that the site was the only common risk factor among all plaintiffs,
and facts specific to the children's family histories. 767 N.E.2d at 323-30.
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In sum, we conclude that the indicia of reliability Jernee
raises do not overcome the reliability problems discussed by the district
court. Accordingly, we conclude that the district court did not abuse its
discretion in excluding Dr. Pike's testimony on specific causation.
The district court properly granted summary judgment
Jernee argues that even if this court affirms the district
court's exclusion of Dr. Pike's testimony, the district court still erred by
granting summary judgment without first addressing Jernee's motion to
strike Kennametal's answer. Jernee argues that its motion to strike, if
granted, would have resulted in a judgment against Kennametal or the
imposition of a presumption as to causation. We disagree.
"This court reviews a district court's grant of summary
judgment de novo." Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d
1026, 1029 (2005). Summary judgment is proper if the pleadings and all
other evidence on file demonstrate that no genuine issue of material fact
exists and the moving party is entitled to judgment as a matter of law. Id.
First, after the district court held that Dr. Pike's testimony
would be excluded, Jernee's counsel asked the court to vacate argument on
pending motions, which included Kennametal's motion for summary
judgment, and only asked to reserve the right to contest factual findings in
the final order. Accordingly, Jernee waived its argument that the district
court erred by deciding the motion for summary judgment without further
arguments. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d
981, 983 (1981) ("A point not urged in the trial court . . . is deemed to have
been waived and will not be considered on appeal.").
Second, Jernee did not seek an inference of causation based on
Kennametal's alleged litigation misconduct in its motion, and did not raise
the possibility that the district court could have applied such an inference
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until this appeal. Thus, Jernee waived the argument that the district
court should have applied an inference of causation instead of granting
summary judgment. See id.
Accordingly, the district court did not abuse its discretion by
deciding the motion for summary judgment prior to deciding the motion to
strike Kennametal's answer.
The district court did not abuse its discretion by denying Jernee's motion to
strike Kennarnetal's answer
Jernee argues that the district court abused its discretion by
denying Jernee's motion to strike Kennametal's answer and affirmative
defenses. See Lane v. Allstate Ins. Co., 114 Nev. 1176, 1181, 969 P.2d 938,
941 (1998) (litigation sanction decisions are reviewed for an abuse of
discretion). Jernee argues that such a sanction was justified based on
Kennametal's alleged litigation misconduct.
First, Jernee attempts to characterize certain legal arguments
from Kennametal as improper Rule 11 threats. Kennametal never
threatened to file an NRCP 11 motion, no motion was filed, and Jernee
points to no authority supporting the argument that a party is subject to
sanctions for suggesting that opposing counsel violated NRCP 11. Second,
Kennametal initially failed to disclose certain documents 8 under NRCP
16.1, but those documents did not fit squarely into Jernee's initial request,
8These documents included: (a) Power Point slides from a 1998
presentation titled "Industry at Risk" discussing the potential
carcinogenicity of tungsten carbide with cobalt; (b) multiple studies
underlying the 1998 presentation; (c) a journal entry by Kennametal's
Health, Safety, and Environment Director stating "2 EPI study show
increase leukemia death;" and (d) reports showing an increase in
emissions prior to the advent of the Cluster, and a drop to zero
simultaneous with the cessation of the Cluster.
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and any prejudice from late production was minimal because the district
court delayed several deadlines to allow Jernee's experts to consider the
newly discovered evidence. Third, Kennametal did not misrepresent
emissions figures by requesting changes to a diagram that made areas of
trace emissions appear the same as areas of no emission. Kennametal
requested changes to the diagram, as it was entitled to, by taking
advantage of a notice and comment period for the report that contained
the emissions diagram. See Cal. Motor Transp. Co. v. Trucking Unlimited,
404 U.S. 508, 510-11 (1972) (observing that companies may "advocate
their causes and points of view" to state and federal agencies). Fourth,
Kennametal did not improperly intimidate potential expert witnesses by
informing a scientific journal that two of its authors failed to disclose a
financial interest in Jernee's case. Kennametal did not know that Jernee
had listed the experts without first contacting them, and even if Jernee
had retained them, the journal's policy would have required disclosure of
that potential conflict.
Finally, Kennametal's destruction of 55 boxes of documents,
although troubling, also does not entitle Jernee to case-ending sanctions.
"Dismissal for failure to obey a discovery order should be used only in
extreme situations; if less drastic sanctions are available, they should be
utilized." Nev. Power Co. v. Fluor Ill., 108 Nev. 638, 645, 837 P.2d 1354,
1359 (1992). Even where a default judgment is awarded as a discovery
sanction, the non-offending party must still establish a prima facie case in
order to obtain the judgment. Foster v. Dingwall, 126 Nev. 56, 67, 227
P.3d 1042, 1049 (2010).
We set forth a nonexhaustive list of factors that a district
court should consider when imposing case-concluding sanctions in Young
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v. Johnny Ribeiro Bldg., Inc., 106 Nev. 88, 93, 787 P.2d 777, 780 (1990).
We conclude that the district court did not abuse its discretion by refusing
to strike Kennametal's answer. Our analysis of the Young factors
demonstrates that the district court's decision was proper. First, the
destruction of the documents does not appear to have been willful, as the
person responsible for destroying the documents did so in response to an
OSHA inspection and believed that the documents did not relate to the
litigation. Second, Jernee does not explain why a lesser sanction would be
inadequate. Third, given the evidence in the record indicating that the
documents in question were financial reports and invoices, striking
Kennametal's answer would be far more severe than the alleged
misconduct. Fourth, although some of the evidence has been irreparably
lost, Kennametal has been able to reproduce duplicates of some of the
records. Fifth, alternative sanctions, like an adverse inference related to
the content of the documents, are feasible but pointless because Jernee
would only benefit from an adverse inference on specific causation, and
the record indicates that the documents were irrelevant to that issue.
Sixth, striking the answer would be entirely contrary to the policy favoring
adjudication on the merits, particularly in this case where the district
court already concluded that Jernee could not prove specific causation.
Seventh, it does not appear that the alleged wrongdoing was related to the
conduct of counsel, as the actual destruction was by a Kennametal
employee seeking to comply with OSHA guidelines. Finally, deterrence
would not be best served by striking the answer because Jernee is seeking
a sanction far in excess of the conduct sought to be punished.
For these reasons, we conclude that the district court did not
abuse its discretion by refusing to strike Kennametal's answer.
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Accordingly, we
ORDER the judgment of the district court AFFIRMED.°
, C.J.
Hardesty
arraguirre
-}txx—e ( I izer J.
Douglas I
Cherr,y
ALL J.
Saitta
J.
Gibbons
cc: Second Judicial District Court Dept. 10
Calvin R.X. Dunlap and Associates
Babst, Calland, Clements and Zomnir, P.C.
Jenkins Law Firm
Washoe District Court Clerk
°The Honorable Kristina Pickering, Justice, voluntarily recused
herself from participation in the decision of this matter.
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