Holbrook v. Lykes Bros. Steamship Co.

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
3-21-1996
Holbrook v. Lykes Bros Steamship
Precedential or Non-Precedential:
Docket 94-2148
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"Holbrook v. Lykes Bros Steamship" (1996). 1996 Decisions. Paper 220.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-2148
GRACE A. HOLBROOK, Administratrix of the Estate of
JOHN P. HOLBROOK
V.
LYKES BROS. STEAMSHIP CO., INC.; MARINE TRANSPORT LINES INC.;
PUERTO RICO MARINE MGMT., INC.; SEA-LAND SERVICE, INC.;
SECOND SHIPMOR ASSOCIATES
V.
THE BABCOCK & WILCOX COMPANY; COMBUSTION ENGINEERING, INC.;
FOSTER-WHEELER ENERGY CORPORATION; THE GENERAL ELECTRIC CO.;
KEENE CORPORATION, Independently and as Successor in Interest to
Ehret Magnesia Manufacturing Company, Baldwin-Hill Company and
Baldwin-Ehret-Hill, Inc.; OWENS-CORNING FIBERGLAS CORP.;
PITTSBURGH CORNING CORPORATION; ANCHOR PACKING COMPANY;
AC&S, INC.; FLEXITALLIC GASKET COMPANY, INC.; GARLOCK, INC.;
OWENS-ILLINOIS GLASS COMPANY; ARMSTRONG WORLD INDUSTRIES, INC.;
HOPEMAN BROTHERS, INC.; SHOOK & FLETCHER; NATIONAL GYPSUM CORP.;
GAF CORPORATION,
Third Party Defendants
(D.C. Civil No. 92-cv-01906)
GRACE A. HOLBROOK, Administratrix for the
Estate of JOHN P. HOLBROOK
V.
ACANDS, INC.; AMERICAN ASBESTOS PRODUCTS CO.; ANCHOR PACKING CO.;
A.P. GREEN REFRACTORIES COMPANY; ARMSTRONG WORLD INDUSTRIES,
INC.; ASARCO; ASBESTOSPRAY CORPORATION; ASBESTOS TEXTILE COMPANY;
B.F. GOODRICH CO.; CAROLINE ASBESTOS COMPANY; CERTAINTEED CORP.;
COLTS PATENT FIREARMS MFG. CO.; COMBUSTION ENGINEERING, INC.;
JOHN CRANE-HOUDAILLE, INC.; DAR INDUSTRIAL PRODUCTS, INC.;
FIBREBOARD CORPORATION; FLEXITALLIC, INC.; FOSTER WHEELER
COMPANY; GAF CORPORATION; GARLOCK, INC.; GATKE CORP.; GENERAL
ELECTRIC CO.; GENERAL INSULATING AND MFG. CO.; GOODYEAR TIRE AND
RUBBER COMPANY; IMO DELAVAL, INC.; KAISER CEMENT & GYPSUM;
KEENE CORPORATION; NATIONAL MANUFACTURING SALES; OWENS-CORNING
FIBERGLAS CORP.; OWENS-ILLINOIS, INC.; PHILADELPHIA ASBESTOS
COMPANY; PPG INDUSTRIES; PABCO PRODUCTS; PITTSBURGH CORNING
1
CORPORATION; TURNER & NEWALL PLC.; UNION CARBIDE CHEMICALS &
PLASTICS CO., INC.; U.S. GYPSUM COMPANY; U.S. RUBBER COMPANY;
WESTINGHOUSE ELECTRIC CORP.; ACMC, f/k/a NATIONAL GYPSUM COMPANY
(E.D. of PA Civil No. 92-cv-01951)
GRACE HOLBROOK, Administratrix for the
Estate of JOHN P. HOLBROOK,
Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil Action No. 92-cv-01906)
Argued September 11, 1995
Before: MANSMANN, SCIRICA and NYGAARD, Circuit Judges
(Opinion Filed March 21, l996)
LEONARD C. JAQUES, ESQUIRE
DONALD A. KRISPIN, ESQUIRE
MICHAEL CONNOR, ESQUIRE (Argued)
Jaques Admiralty Law Firm
1370 Penobscot Building
Detroit, MI 48226
Attorneys for Appellant
FAUSTINO MATTIONI, ESQUIRE
Mattioni, Mattioni & Mattioni
399 Market Street, 2nd Floor
Philadelphia, PA 19106
Attorney for Appellee Lykes Bros.
ROBERT B. LAWLER, ESQUIRE
MARY COOK, ESQUIRE
Wilbraham, Lawler & Buba
601 Walnut Street
The Curtis Center
Suite 450 West
Philadelphia, PA 19106
Attorney for:
Puerto Rico Marine; Sea-Land;
Second Shipmor; Acands;
A.P. Green; Armstrong World;
John Crane Houdaille; Flexitallic;
GAF; Garlock; Imo Delaval;
National Gypsum; Turner Newall; Union Carbide;
US Gypsum; Westinghouse; Combustion Engineering;
Foster-Wheeler; Owens-Corning; Shook & Fletcher.
2
RICHARD C. BINZLEY, ESQUIRE
HAROLD W. HENDERSON
Thompson, Hine & Flory
629 Euclid Avenue
1100 National City Bank Building
Cleveland, OH 44114
Attorneys for Appellees:
Puerto Rico Marine; Sea-Land;
Second Shipmor.
ALEXANDER EWING, JR., ESQUIRE
Gollatz, Griffin, Ewing & McCarthy
205 North Monroe Street
P.O. Box 1430
Media, PA 19063
Attorney for Appellee Acands
WESLEY R. PAYNE, IV, ESQUIRE
Law Office of Joseph P. Sullivan
100 Penn Square East
Suyite 1050, The Wanamaker Building
Philadelphia, PA 19102
Attorney for Appellee Houdaille
JOHN A. TURLIK, ESQUIRE
Goldfein & Joseph
111 South 15th Street
Packard Building, 17th Floor
Philadelphia, PA 19102
Attorney for Appellee Garlock
REEDER R. FOX, ESQUIRE
Duane, Morris & Heckscher
4200 One Liberty Place
Philadelphia, PA 19103-7396
Attorney for Appellee Imo Delaval
ERIC J. KADISH, ESQUIRE
McCarter & English
1810 Chapel Avenue West
The Commerce Center
Cherry Hill, NJ 08002
Attorney for Appellee Owens-Illinois
STEVEN T. JOHNSON, ESQUIRE (Argued)
Johnson & Garvin
705 Second Avenue
610 Hoge Building
Seattle, WA 98104
Attorney for Appellee Owens Illinois
3
WILLIAM A. JONES, ESQUIRE
Sherr, Joffe & Zuckerman
200 Four Falls Corporate Center
P.O. Box 800, Suite 400
West Conshohocken, PA 19428-0800
Attorney for Appellee Westinghouse
JOHN P. McSHEA, III, ESQUIRE
Eckert, Seamans, Cherin & Mellott
1700 Market Street Suite 3232
Philadelphia, PA 19103
Attorney for Appellee Westinghouse
WILLIAM R. HOURICAN, ESQUIRE
Manta & Welge
2005 Market Street
One Commerce Square, 37th Floor
Philadelphia, PA 19103
Attorney for Appellee PPG Industries
JOHN L. DELANY, III, ESQUIRE
Delany & O'Brien
330 Market Street Suite 300
Philadelphia, PA 19106
Attorney for Appellee Combustion Engineering
JOSEPH M. O'NEILL, ESQUIRE
Marks, O'Neill, Reilly & O'Brien
1880 JFK Boulevard Suite 1200
Philadelphia, PA 19103
Attorney for Appellee Foster-Wheeler
E. MICHAEL KEATING, III, ESQUIRE
Clark, Ladner, Fortenbaugh & Young
2005 Market Street
One Commerce Square, 22nd Floor
Philadelphia, PA 19103
Attorney for Appellee General Electric
ROBERT N. SPINELLI, ESQUIRE
Kelley, Jasons, McGuire & Spinelli
1234 Market Street Suite 1300
Philadelphia, PA 19107
Attorney for Appellee Owens-Corning
ANDREW J. TREVELISE, ESQUIRE
MARILYN HEFFLEY, ESQUIRE
Reed, Smith, Shaw & McClay
1650 Market Street
2500 One Liberty Place
4
Philadelphia, PA 19103-7301
Attorney for Appellees:
Pittsburgh Corning; Fibreboard
LESLIE A. MILLER, ESQUIRE
Goldfein & Joseph
111 South 15th Street
Packard Building, 17th Floor
Philadelphia, PA 19102
Attorney for Anchor Packing
WILLIAM G. SCARBOROUGH, ESQUIRE
Stradley, Ronon, Stevens & Young
2600 One Commerce Square
Philadelphia, PA 19103
Attorney for Appellee Hopeman Bros.
OPINION OF THE COURT
NYGAARD, Circuit Judge
John Holbrook sued several shipping companies and
manufacturers and suppliers of asbestos products, alleging that
he developed mesothelioma from exposure to asbestos-containing
products while working aboard the shipping companies' vessels.
John Holbrook died in October of 1993, and his widow, Grace
Holbrook, administratrix of his estate, was substituted as
plaintiff. The jury found for defendants on liability. Holbrook
now challenges several evidentiary rulings by the district court,
including the court's rulings: 1) excluding testimony from the
decedent's treating physician on his diagnosis of mesothelioma;
2) excluding testimony from a pulmonologist eliminating radiation
as a cause of John Holbrook's mesothelioma; 3) allowing testimony
5
by two defense experts on radiation exposure as a cause; and, 4)
redacting references to mesothelioma contained in various
documents. Holbrook argues that the trial judge's conduct was
unfair and requests a new trial before a different judge. We
conclude that the court's conduct did not prevent a fair trial,
but that the court committed reversible error by excluding
testimony from appellant's experts. We will reverse and remand
the cause for a new trial.
I.
Holbrook served as a merchant seaman aboard the shipping
companies' vessels from 1953 to 1991. He also served aboard ship
in the South Pacific for seven months in 1962 during a government
nuclear testing operation called "Dominic I." At trial, Holbrook
sought to prove that John Holbrook died from mesothelioma as a
result of asbestos exposure aboard the shipping vessels. The
defendants contended that the exposure to asbestos, if any, was
minimal and could not have caused mesothelioma, and that if John
Holbrook suffered from mesothelioma, it resulted from radiation
exposure during Dominic I. Both sides contested the
admissibility of various experts' testimony.
The district court excluded certain testimony by Dr.
Carpenter, Holbrook's treating physician, and by Dr. Altschuler,
a board-certified physician in internal and pulmonary medicine.
The court felt that they lacked the requisite specialization to
testify as to certain matters. It based its ruling, in part, on
its conclusion that mesothelioma and its cause is difficult to
6
diagnose, and that only a few types of medical specialists would
qualify to give expert opinion testimony about it.
A.
The Federal Rules of Evidence embody a "strong and
undeniable preference for admitting any evidence having some
potential for assisting the trier of fact." DeLuca v. Merrell
Dow Pharmaceutical, Inc., 911 F.2d 941, 956 (3d Cir. 1990). "Rule
702, which governs the admissibility of expert testimony,
specifically embraces this policy," United States v. Velasquez,
64 F.3d 844, 849 (3d Cir. 1995), and has a liberal policy of
admissibility. In re Paoli R.R. Yard Litigation ("Paoli II"), 35
F.3d 717, 741 (3d Cir. 1994). Together, Rules 702 and 104(a)
instruct the district court in determining the admissibility of
expert testimony. Rule 702 provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form
of an opinion or otherwise.
Under Rule 104(a), the district court makes preliminary
determinations whether the proposed expert witness is qualified
and whether the testimony to be given is admissible under Rule
702. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.
Ct. 2786, 2796 (1993). This preliminary task ensures that the
testimony meets a minimum threshold of reliability and relevance.
Id. at 2795; Velasquez, 64 F.3d at 829.
Under Rule 702, (1) the proffered witness must be an expert;
(2) testify about matters requiring scientific, technical or
7
specialized knowledge; and (3) the expert's testimony must assist
the trier of fact. Paoli II, 35 F.3d at 741-42. Holbrook's
first allegation of error, the court's ruling excluding testimony
by her experts, concerns the first requirement. The issue of the
admissibility of the defense experts' testimony, discussed in
section III, infra, involves the other two requirements.
B. Dr. Carpenter
The first requirement of Rule 702 -- that the
proposed witness be an expert -- has been liberally
construed by this Court. Paoli II, 35 F.3d at 741. "We
have held that a broad range of knowledge, skills, and
training qualify an expert as such," and have "eschewed
imposing overly rigorous requirements of expertise."
Id.; see also Hammond v. International Harvester Co.,
691 F.2d 646, 653 (3d Cir. 1982)(permitting engineer
with sales experience in automotive and agricultural
equipment, who also taught high school automobile
repair, to testify in products liability action
involving tractors).
Velasquez, 64 F.3d at 849.
Dr. Carpenter, John Holbrook's treating physician,
specializes in internal medicine. At trial, Dr. Carpenter
described the medical procedures undertaken to diagnose and treat
John Holbrook. In great detail, he described the treatment,
including his injection of the chemotherapeutic agent
fluorouracil into his patient's chest cavity. During Carpenter's
direct examination, when the subject turned to whether he
designed the treatment for a specific malignancy, the court
interrupted and stated:
He gave the treatment that he gave. This witness has
not been qualified and he will not be permitted to give
an opinion to a reasonable degree of medical certainty
as to whether or not the cancer was mesothelioma.
8
The court prevented the treating physician from testifying:
(1) that he made a diagnosis for which he treated Mr. Holbrook;
(2) that his diagnosis was mesothelioma; (3) as to his
preliminary impression of the decedent; (4) as to the diagnosis
in the pathology report analyzing a tissue sample of Holbrook's
lungs, a report which Dr. Carpenter requested and on which he
relied in treating his patient; and (5) as to the decedent's
symptoms. The court excluded this testimony because Dr.
Carpenter was not an oncologist or a specialist in what the court
inexplicably termed "definitive cancer diagnosis." Referring to
Dr. Carpenter's reliance on the pathology report, the court
interjected that Dr. Carpenter did not make his own diagnosis,
despite the fact that Dr. Carpenter testified that he did exactly
that.
Dr. Carpenter testified that he routinely relies on
pathology reports to assist him in treating his patients, because
pathologists have more experience examining and diagnosing tissue
specimens. Specifically, Dr. Carpenter relied on the pathology
report he had ordered to confirm his clinical impression and
diagnosis of John Holbrook. Dr. Carpenter's reliance on the
pathology report to confirm his diagnosis does not reflect
negatively on his qualifications or ability to diagnose his
patient; to the contrary, it reflects routine procedure in
medical treatment, as recognized by Rule 703.
Because of our liberal approach to admitting expert
testimony, most arguments about an expert's qualifications relate
more to the weight to be given the expert's testimony, than to
9
its admissibility. Thus, witnesses may be competent to testify
as experts even though they may not, in the court's eyes, be the
"best" qualified. Who is "best" qualified is a matter of weight
upon which reasonable jurors may disagree.
In Paoli II, we reversed the district court's finding that a
witness was not qualified because we found that the doctor,
"while arguably a relatively poor clinician and less than fully
credible witness, qualifie[d] as an expert." 35 F.3d at 753.
Similarly, in re Paoli R.R. Yard PCB Litigation ("Paoli I"), 916
F.2d 829 (3d Cir. 1990), we stated that:
insistence on a certain kind of degree or background is
inconsistent with our jurisprudence in this area. The
language of Rule 702 and the accompanying advisory
notes make it clear that various kinds of "knowledge
skill, experience, training or education," Fed. R.
Evid. 702, qualify an expert as such.
Id. at 855. Following this logic, it is an abuse of discretion
to exclude testimony simply because the trial court does not deem
the proposed expert to be the best qualified or because the
proposed expert does not have the specialization that the court
considers most appropriate. Id. at 856.
The court's mistaken approach restricted Dr. Carpenter's
testimony based on a requirement that the witness practice a
particular specialty to testify concerning certain matters. In
light of our liberal standard governing the qualifications of a
proffered expert witness, and our acceptance of more general
qualifications, we hold that the district court erred by finding
that Dr. Carpenter was not qualified to render a diagnosis or to
10
discuss the pathology report because he was not a pathologist,
oncologist or expert in "definitive cancer diagnosis."1
The Notes of the Advisory Committee on Rule 703, the
corollary to Rule 702, refer to, inter alia, reliance on reports
of others, and further illustrate the trial court's error. The
Notes provide:
a physician in his own practice bases his diagnosis on
information from numerous sources and of considerable
variety, including statements by patients and
relatives, reports and opinions from nurses,
technicians and other doctors, hospital records, and X
rays. Most of them are admissible in evidence, but
only with the expenditure of substantial time in
producing and examining various authenticating
witnesses. The physician makes life-and-death
decisions in reliance upon them. His validation,
expertly performed and subject to cross-examination,
ought to suffice for judicial purposes.
The Federal Rules of Evidence are meant to instruct the
district courts in the sound exercise of their discretion in
making admissibility determinations and should not be interpreted
as exclusionary rules. It would be inconsistent and run counter
to the Rules' liberal policy of admissibility to allow an outside
1
Federal Rule of Evidence 102 provides that:
These rules shall be construed to secure fairness in
administration, elimination of unjustifiable expense
and delay, and promotion of growth and development of
the law of evidence to the end that the truth may be
ascertained and proceedings justly determined.
Our approach to expert qualifications comports with the liberal
policy of admissibility embodied in the rules and with the
mandate of Rule 102. The district court's approach, however,
would unjustly increase litigation costs by requiring litigants
in countless cases to hire a host of experts out of fear that
their treating physicians, in whom they entrusted their health
and lives, would not "make the grade" when it came time to
testify in court.
11
expert, hired solely for litigation purposes, to rely on and
testify about a pathology report, but exclude testimony by the
treating physician who ordered the report and relied on it for
life and death decisions about the patient's treatment. Opinions
by physicians who have neither examined nor treated a patient
"have less probative force, as a general matter, then they would
have if they had treated or examined him." Wier ex rel. Wier v.
Heckler, 734 F.2d 955, 963 (3d Cir. 1984). In the context of
social security disability cases, in fact, we afford greater
weight to a treating physician's opinion. See Dorf v. Bowen, 794
F.2d 896 (3d Cir. 1986); Brewster v. Heckler, 786 F.2d 581 (3d
Cir. 1986). "The rationale for giving greater weight to a
treating physician's opinion is that he is employed to cure and
has a greater opportunity to know and observe his patient. . . ."
Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). We
conclude that the court erred by excluding the treating
physician's testimony.
C. Dr. Altschuler
The district judge's ruling on Dr. Altschuler's
qualifications suffers from the same flaw.2 Dr. Altschuler is
board-certified in and practices internal and pulmonary medicine.
Dr. Altschuler described his primary practice area as follows:
[P]ulmonary medicine involves the diseases of the chest
and lungs. It involves medical treatment, certain
2
Defendants do not address the court's ruling on Dr.
Altschuler's testimony, other than to argue that Holbrook was
allowed to ask questions regarding the literature on radiation
and mesothelioma, that Dr. Altschuler is not very knowledgeable
in the field, and that he makes a habit of testifying on behalf
of plaintiffs.
12
procedures such as looking into the lungs of patients.
It involves an expertise in reading chest x-rays and
understanding pulmonary function tests which are
breathing tests. It involves treatment of occupational
diseases that affect the chest.
Mesothelioma is a pulmonary disease.
Dr. Altschuler testified that he was familiar with John
Holbrook's occupational work history, medical history and
records, and was also familiar with the literature on causal
agents of mesothelioma, but was not aware that radiation had ever
been linked to mesothelioma. At his deposition, he could not
recall a firm linkage between mesothelioma and radiation. At
trial, he stated that he had "found a few articles relating to
sporadic rare cases out of the thousands of cases of mesothelioma
each year, there are a few over the last 15 or 20 years that have
shown some relationship to radiation." Read as a whole, Dr.
Altschuler's testimony at trial suggests that his previous
inability to recall specific literature linking radiation to
mesothelioma resulted from his conclusion, based on his
familiarity with the literature, that sporadic rare cases in the
literature did not support radiation as a major causative factor.
The district court, however, did not disallow testimony based on
Dr. Altschuler's familiarity, or alleged lack thereof, with the
literature on radiation and mesothelioma.
When asked about radiation as a cause of mesothelioma, the
court sustained a defense objection, ruling that Dr. Altschuler
was not "qualified as a 'radiation expert' vis-a-vis cancer. He's
not an oncologist," and would not allow him to discuss the
relationship between radiation and mesothelioma. The court
13
erroneously required that the expert have a specialization in
cancer and radiation, despite his expertise in lung diseases,
including mesothelioma. In placing restrictions on Dr.
Altschuler's testimony because he did not possess the exact
background it deemed appropriate, the court erred.
II.
Holbrook next alleges that the court erred by allowing
defense experts, Drs. Demopoulos and Browne, to testify that
radiation caused John Holbrook's cancer, and by not preliminarily
making the determination on admissibility of this testimony.
Holbrook's position is that this testimony lacked a sufficient
scientific basis under Rule 702, as interpreted by Daubert.
The second requirement of Rule 702 -- that the expert
testify to scientific, technical or other specialized
knowledge -- is intended to ensure the reliability or
trustworthiness of the expert's testimony.
Velasquez, 64 F.3d at 849 (citation omitted).
Defendants sought to prove through these experts that John
Holbrook's cancer resulted from exposure to radiation in Dominic
I. Drs. Demopoulos and Browne were permitted to testify, over
plaintiff's objections, that radiation exposure in 1962, as
opposed to prolonged asbestos exposure, was a distinct possible
cause, a very highly probable cause, and the most probable cause
of his cancer diagnosed three decades later.
A.
Under Daubert's interpretation of Rule 104(a), a district
court facing a proffer of scientific expert testimony must as a
preliminary matter assess whether the reasoning or methodology
14
underlying the expert's testimony is scientifically valid. The
court accomplishes this "by considering all relevant factors that
may bear on the reliability of the proffered evidence."
Velasquez, 64 F.3d at 849; see also Paoli II, 35 F.3d at 742. The
reliability requirement, however, should not be applied too
strictly. Helpfulness to the trier of fact remains the ultimate
touchstone of admissibility. If the expert has "good grounds"
for the testimony, the scientific evidence is deemed sufficiently
reliable. A determination that the expert has good grounds
assures that the expert's opinions are based on science rather
than "subjective belief or unsupported speculation." Daubert, 113
S. Ct. at 2795.
B.
Holbrook argues that the district court failed in its
gatekeeping responsibility by allowing the jury to hear the
radiation testimony without first determining its admissibility.
The record shows otherwise. The court scheduled a pretrial
Daubert hearing at plaintiff's request to determine if the expert
testimony regarding radiation exposure as a cause of mesothelioma
was admissible. Inexplicably, Holbrook's counsel seemed
unprepared to proceed with that hearing, and the court therefore
did not hold one. Despite this, the court nevertheless indicated
to Holbrook's counsel that it would entertain counsel's motion at
trial to strike the expert testimony.
Although Daubert ordinarily could be construed to require
that the court make the preliminary determination outside the
jury's hearing, we cannot say that the court abused its
15
discretion in adhering to the requirements of Rules 104 and 702.
The court adequately explained its reasoning when it stated:
I will not have a hearing of such length while a jury
is waiting to be selected . . . . This was your
opportunity for a Daubert hearing today and tomorrow.
It is improper to have jurors waiting for several days
to be selected in a case that might go on for weeks.
Counsel failed to prepare appropriately and the court exercised
sound discretion in controlling the efficient and orderly
disposition of this case to avoid unnecessary inconvenience to
the jury.
C.
We also find no error in the court's refusal to strike the
testimony. Dr. Demopoulos specializes in pathology -- the study
of disease. His research has focused largely on the study of
cancer, a subject in which he has taught, and on which he has
written articles. During his residency, he performed radiation
studies on animals, and during a tenure with the National
Institutes of Health, he studied radiation pathology. Currently,
Dr. Demopoulos devises experiments to enhance the susceptibility
of tumors to radiation and to enhance the protective effects in
surrounding tissue to protect it from damage. His testimony
revealed extensive knowledge of radiation oncogenesis,
familiarity with the Dominic I Operation and familiarity with the
radiation exposure history of John Holbrook.
With this background, Dr. Demopoulos testified that, unlike
exposure to asbestos, there is no threshold exposure to radiation
required to cause cancer, and that "[t]he most probable cause of
Mr. Holbrook's cancer was the exposures that he sustained at
16
Dominic I operations in 1962." He based his opinion on a review
of Mr. Holbrook's medical records and exposure to radiation, and
on his own research and study.
Dr. Browne specializes in occupational lung disease, and his
research initially focused on mesothelioma. He has made
presentations at scientific gatherings regarding threshold levels
of exposure to asbestos and resulting mesothelioma, and has
published several papers. At trial, he discussed his extensive
knowledge about studies of radiation as a cause of cancer,
including mesothelioma. He testified, based on the medical and
scientific literature relating to radiation and cancer, that low
doses of radiation can cause cancer, including mesothelioma, and
that unlike asbestos exposure, there is no threshold requirement
of exposure for radiation to cause cancer. He further testified
that, in his opinion to a reasonable degree of medical certainty,
radiation exposure could not be excluded as a cause of John
Holbrook's cancer.
Both experts' extensive backgrounds in the study of
mesothelioma and its causes, including radiation, their review of
the literature and their review of John Holbrook's history
provided substance upon which they could offer scientific
opinions that met the required threshold of reliability. As
required by Daubert, their procedures for examining the facts
presented to them and their own research methodologies were based
on the methods of science and did not reveal opinion based merely
on their own subjective beliefs.
D.
17
In a related matter, Holbrook objects to portions of the defense
experts' testimony, arguing that in several instances the
testimony was not given to the degree of certainty required.
Holbrook cites Paoli II and Schulz v. Celotex Corp., 942 F.2d 204
(3d Cir. 1991), for the proposition that medical experts must
testify to a reasonable degree of medical certainty.
In one instance at trial, the court sustained a defense objection
during cross-examination, questioning whether Dr. Browne could
state with reasonable medical certainty that radiation exposure
caused decedent's mesothelioma. The court ruled that the
question was solely for the jury. Dr. Browne's answer would have
helped the jury to evaluate the impact of his testimony on
plaintiff's evidence that asbestos exposure caused John
Holbrook's cancer. Although a specific degree of certainty may
not be required, the court erred by not allowing Holbrook to pose
the question.
We have not required that when medical experts give their
opinion, they recite the talismanic phrase that their opinion is
given to "a reasonable degree of medical certainty," because
"[c]are must be taken . . . to see that the incantation does not
become a semantic trap and the failure to voice it is not used as
a basis for exclusion without analysis of the testimony itself."
Schulz, 942 F.2d at 208. Nonetheless, as we stated in Schulz,
the phrase "is a useful shorthand expression that is helpful in
forestalling challenges to the admissibility of expert
testimony." Id. at 208. It also assists a reviewing court in
determining whether the jury has been given the appropriate
18
standard by which to judge the opinion. The district court,
therefore, erred by disallowing cross-examination of Dr. Browne
to determine whether his opinion met this degree of certainty.
In another instance cited by Holbrook, the court overruled an
objection to Dr. Browne's testimony, in which he stated
that radiation is a distinct possible cause. I have no
way of telling whether it is to a degree of medical
certainty the cause.
"Situations in which the failure to qualify the opinion have
resulted in exclusion are typically those in which the expert
testimony is speculative, using such language as 'possibility.'"
Id. at 208. The Federal Rules of Evidence, however, do not
require a particular phrase regarding the degree of certainty
with which experts must form their opinions, but they certainly
allow questions concerning the degree to which the opinion is
held.
Accordingly, while the particular phrase used should
not be dispositive, it may indicate the level of
confidence the expert has in the expressed opinion.
Perhaps nothing is absolutely certain in the field of
medicine, but the intent of the law is that if a
physician cannot form an opinion with sufficient
certainty so as to make a medical judgment, neither can
a jury use that information to reach a decision.
Id. at 209.
In Schulz, we reversed the trial court's decision to exclude an
expert's testimony because counsel failed to preface the question
with the precise phrase, because we found that the expert's
testimony possessed the requisite degree of certainty for
admissibility. The expert stated his opinion in unequivocal
terms and his opinion was relied on extensively in the treatment
of the plaintiff.
19
It is true that in Paoli II, we reversed a summary judgment on
certain claims because the plaintiff's expert had not testified
to a degree of medical certainty. We required that degree of
certainty in Paoli II because, under Pennsylvania law, the burden
of proof required that degree of certainty.
Here, the test is different. Drs. Demopoulos and Browne
testified for the defense that radiation could not be excluded,
as it was a distinct possible cause of John Holbrook's cancer. In
fact, Dr. Browne testified on this issue to a reasonable degree
of medical certainty. Although that testimony would have been
insufficient to prove that radiation exposure caused the cancer,
a burden which the defense did not bear, it was sufficiently
certain and could help the jury to evaluate testimony by
plaintiff's experts that asbestos exposure caused the cancer, an
issue on which plaintiff bore the burden of proof. Therefore, the
court did not err when it refused to strike the defense experts'
testimony.
III.
Holbrook also challenges the district court's ruling that
references to mesothelioma in various documents must be redacted.
Holbrook contends that she properly moved for admission of the
death certificate, autopsy report and hospital records, including
the references in them to mesothelioma, under Federal Rule of
Evidence 803(6),(8)-(9). The court, however, required under Rule
4033 that references to malignant mesothelioma be deleted because
3
Rule 403 provides:
20
the authors of the documents did not testify about the bases of
their diagnoses. In so ruling, the court stated that "[t]he
diagnosis of mesothelioma is a diagnosis that must be subjected
to cross-examination in order for it to be meaningful to a jury."
Rule 803 does not mandate admission of this evidence, but rather
allows evidence to be admitted when it would otherwise be
objectionable hearsay. Thus, Rule 403 always remains as a
potential bar to admissibility. Daubert, 113 S. Ct. at 2798.
Holbrook's statement that "Records of deaths are simply
admissible 'as is,'" is simply wrong, ignoring our decisions in
Schulz and Pollard v. Metropolitan Life Ins. Co., 598 F.2d 1284
(1979). Although in Schulz we did not reach the issue whether
the district court properly refused to admit a death certificate
indicating asbestosis when the etiology of plaintiff's cancer was
in dispute, we clearly indicated that the court's analysis under
Rule 403 was in order. 942 F.2d at 209.
"[A] trial judge's decision to admit or exclude evidence under
[Rule 403] may not be reversed unless it is arbitrary and
irrational," Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 187
(3d Cir. 1990), but the trial court should articulate its
balancing analysis. Glass v. Philadelphia Elec. Co., 34 F.3d
188, 191 (3d Cir. 1994). That a district court failed to take
the opportunity to articulate its balancing does not constitute
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.
21
reversible error per se; however, it may require that the
appellate court do so. See id. at 192.
In Pollard we upheld the trial judge's redaction under Rule 403
of references to "accidental death" from a death certificate,
coroner's certificate and pathologist's necropsy report. There,
the decedent's widow sought benefits under a policy covering
accidental death. The trial court found that statements in those
documents could mislead the jury because the legal meaning of the
phrase "accidental death" as defined and used in the insurance
policy could differ from its meaning as used in the medical
reports. To avoid this problem, the court excised from the
documents any reference to the death as accidental. We held that
the court properly used Rule 403 to avoid unfair prejudice and
confusion.
In ruling that references to mesothelioma in various documents
would be redacted, the district court articulated its Rule 403
balancing as follows:
[T]he diagnosis of mesothelioma is a diagnosis that
must be subjected to examination and cross-examination
. . . . [I]t is my ruling that under Rule 403 that
there is an unfair risk of unfair prejudice for you to
be able to argue that 9 other doctors unexamined in
this Court diagnosed mesothelioma, which at best has a
-- only a 90 percent chance of diagnosis as I
understand the testimony through autopsy being correct.
And a 60 percent chance at being correct if there is a
tissue sample excised from the lung as opposed to a
needle point examination where the risk of being right
is - - the chance of being right is only 40 percent. .
. . [I]n terms of trustworthiness of the diagnosis,
it's not like there was a bone that's broken, the bone
is broken. Here you have a diagnosis of mesothelioma
which is something that has to be examined as to method
of diagnosis, technique of diagnosis, certainty of
diagnosis.
22
It may be argued that the difficulty of the diagnosis affects the
weight to be accorded the documents' contents, not their
admissibility. This is not necessarily so; however, the
difficulty of the diagnosis does indeed go more to the weight
than to the admissibility of the evidence, but that does not make
it irrelevant to admissibility in light of Rule 403. In addition
to the independent Rule 403 hurdle, Rule 803(6) and Rule 803(8)
expressly contemplate exclusion based on untrustworthiness.
The court, based on its determination that mesothelioma is
difficult to diagnose, determined that the risk of unfair
prejudice, by leaving references to mesothelioma in documents not
testified to by their authors nor relied on by qualified experts,
outweighed their probative value. And, according to the court,
because of problems in accurately diagnosing mesothelioma, the
unexamined references were not helpful to and could potentially
have misled the jury. The court's ruling requiring that
references to mesothelioma in various documents be redacted was
neither arbitrary nor irrational, and will be affirmed.
IV.
Because we find that the court erred by excluding certain
testimony, we can affirm the jury's verdict on liability only if
those errors were harmless. See Advanced Medical, Inc. v. Arden
Medical Systems, Inc., 955 F.2d 188 (3d Cir. 1992). "A
determination of harmless error depends on whether it is highly
probable that the error did not contribute to the judgment." Id.
at 199.
23
In McQueeney v. Wilmington Trust Co., 779 F.2d 916, 923 (3d Cir.
1985), we found that the district court's refusal to admit
evidence impaired the defendants' ability to discredit a central
element of the plaintiff's case, was critical for defense against
liability, was potentially the defendants' best evidence and was
not cumulative. As a result, we could not say that it was highly
probable that the failure to admit the evidence did not affect
the defendants' substantial rights, and we reversed the district
court. Hence, if including the improperly excluded testimony
makes it more likely that the jury would have reached a different
decision, the error is not harmless.
Here, the testimony by plaintiff's experts bore on the critical
issue of whether John Holbrook had mesothelioma caused by
exposure to asbestos, and the treating physician's testimony
about his diagnosis may have been Holbrook's best evidence on the
existence of mesothelioma. Likewise, Dr. Altschuler's testimony
eliminating radiation as a cause was crucial to a finding that
asbestos, not radiation, caused John Holbrook's mesothelioma.
This makes it difficult to say that it is highly improbable that
admitting this evidence would not affect the outcome. To the
contrary, it appears that it would. Because we cannot say that
these errors were harmless, Holbrook is entitled to a new trial.4
4
Holbrook makes other assignments of error, and argues, without
further analysis, that the rulings were an abuse of discretion
and that the "multitude of error requires reversal and a new
trial." As we have stated, we will grant Holbrook a new trial.
The unsupported allegations of error are generally without merit,
however, even if error, they would not require a new trial.
Following our course in Schulz, we leave these issues for further
development at the next trial.
24
Holbrook also asserts that the district judge's conduct at trial
prejudiced her case. Holbrook urges us to examine her attempts
to conduct direct examination of her medical experts. According
to Holbrook, "[t]he actions of the trial judge, taken as a whole,
effectively communicated to the jury that the judge had a low
opinion of plaintiff's case and her counsel."
Unquestionably, bias and improper conduct by a trial
judge may be grounds for a new trial if a party was
unfairly prejudiced. Active participation by a
district judge in trial proceedings, however, is in
itself neither improper nor unfair.
Desjardins v. Van Buren Community Hospital, 969 F.2d 1280 (1st
Cir. 1992).
The district court's conduct (as distinguished from its
evidentiary rulings) does not warrant a new trial. The court
interrupted counsel for both sides repeatedly and tried to
instruct both sides on the proper procedure to follow in certain
lines of questioning. Although the court's demeanor may have
been gruff at times, Holbrook's counsel seemed to be testing the
court by pursuing issues on which the court had previously made
its rulings clear. This conduct falls squarely within the
judge's role of controlling the court proceedings, and cannot be
fairly characterized as prejudicing plaintiff or unduly
humiliating counsel. The trial judge's role is to preside over
the trial; passively if possible but aggressively when indicated.
The judge's efforts must vary with the exigencies of the trial.
Inadequately prepared or overly aggressive advocates may indeed
require that the trial court interpose itself more actively and
25
even forcefully in the proceedings to assure fairness. That, we
are convinced, is what the trial court did here.5
V.
In sum, because we conclude that the district court committed
reversible error by precluding the treating physician's testimony
about his diagnosis of mesothelioma and his reliance on the
pathology report and by restricting the pulmonologist's testimony
from eliminating radiation as a cause of the mesothelioma, we
will reverse the judgment in favor of defendants and remand the
cause for a new trial. Her request that we reassign the case to
a new judge on remand is denied.
Holbrook v. Lykes Bros. Steamship Co., Inc., et al., No. 94-2148
SCIRICA, Circuit Judge, concurring in part
and dissenting in part:
5
Liteky v. United States, 114 S. Ct. 1147 (1994) supports the
proposition that we have the power to assign the case to another
judge on remand if we determine recusal is necessary or if we
determine that reassignment is required for "further proceedings
to be had as may be just under the circumstances." Id. at 1157.
"[J]udicial rulings alone almost never constitute valid basis for
a bias or partiality motion." Id. at 1157. In view of our
holding here, however, we need not spend more time on Holbrook's
request for retrial before a different judge. Her request is
rejected.
26
Although I join in Parts II and III of the opinion I do
not believe the district court's rulings on the testimony of Dr.
Carpenter and Dr. Altschuler require granting a new trial.
I.
Dr. Carpenter, a specialist in internal medicine, was
John Holbrook's treating physician. The district court did not
permit Dr. Carpenter to state that he diagnosed Holbrook with
mesothelioma because pathologists at Holy Cross Hospital rather
than Dr. Carpenter actually "made" the diagnosis. ("[Carpenter]
himself did not make the diagnosis. He may have relied upon a
report of a diagnosis."). While the district court's ruling may
reflect too rigid a view of the diagnostic process, I do not
believe its limitation of Dr. Carpenter's testimony constituted
reversible error. Reversal and remand for a new trial is
justified only where a trial judge's erroneous exclusion of
evidence is not harmless. Fed. R. Civ. P. 61 provides in part:
No error in either the admission or the
exclusion of evidence ... is ground for
granting a new trial or for setting aside a
verdict ... unless refusal to take such
action appears to the court inconsistent with
substantial justice.
Although the district court excluded testimony by Dr. Carpenter,
there still was substantial evidence from other sources that
Holbrook suffered from mesothelioma. Most important was the
testimony of Dr. Reineke,6 a board certified pathologist and the
6
The testimony of Dr. Reineke was taken by videotape and
presented at trial.
27
chief of pathology at Holy Cross Hospital, who testified Holbrook
had mesothelioma.7
The crucial issue at trial was causation -- whether
John Holbrook died from mesothelioma as a result of asbestos
exposure or as a result of radiation exposure. Given the ample
evidence that John Holbrook suffered from mesothelioma, it is
highly probable the district court's refusal to allow Dr.
Carpenter to state his diagnosis did not contribute to the
judgment of the jury. Any error was harmless.
II.
At a pretrial deposition, Dr. Altschuler, who was board
certified in internal and pulmonary medicine, admitted he had no
familiarity with the medical literature on the relationship
between radiation and mesothelioma. He said he was not aware
that radiation had ever been linked to mesothelioma.
Nevertheless, the district court did not preclude Dr. Altschuler
from testifying based on knowledge derived from medical
literature he read subsequent to his deposition but prior to
trial. ("You may ask him what literature he refers to with
respect to radiation and what does it say, if you choose."). In
short, although the court refused to qualify Dr. Altschuler as an
expert on radiation, it allowed him to testify about what he
knew.
7
Despite the district court's rulings, evidence presented to
the jury included unredacted references to mesothelioma in
hospital medical records. Furthermore, Dr. Demopoulos, a board
certified pathologist, testified that the autopsy report listed
"malignant mesothelioma" as the cause of Holbrook's death.
28
In view of Dr. Altschuler's background and the court's
admission of his testimony on radiation and mesothelioma, I
cannot conclude the district court abused its discretion in
refusing to qualify Dr. Altschuler as an expert on radiation and
limiting his testimony. Moreover, plaintiff called Francis
Masse, director of the radiation protection programs at the
Massachusetts Institute of Technology, and Dr. David Hoel,
chairman of the Department of Biometry and Epidemiology at the
Medical University of South Carolina, to testify that radiation
did not cause her husband's illness. In light of their
testimony, the district court's limitation on Dr. Altschuler's
testimony was harmless.
III.
For the foregoing reasons, I would deny plaintiff's
request for a new trial.
29